Unlike Supreme Court decisions, federal court rulings are typically issued with little or no fanfare. They are virtually never read aloud in the courtroom but are instead quietly made public, often only in typed manuscript form, by the clerk’s office, which in the abortion case was in New Orleans, the seat of the Fifth Circuit. The Roe decision was a routine announcement. After slightly less than a month’s deliberation, the judges released their opinion on June 17, 1970. Copies of the decision had been mailed to the lawyers on the case. Other copies were placed in three press boxes—one for the Times-Picayune and the others for the wire services—in the clerk’s office.
The opinion, only thirteen pages long when printed, began by addressing the jurisdictional issue of standing: Did Jane Roe and the other plaintiffs have a right to sue? The court found that Jane Roe and Dr. Hallford had standing, but the Does did not. Their case was dismissed. The court reasoned that since Mary Doe was not pregnant, she and her husband’s case presented no real controversy. One of the ground rules for bringing a lawsuit is that it must present real controversy.
Turning next to the merits of the case, the court again ruled in favor of the plaintiffs. They found that the Texas abortion law was unconstitutional: a woman’s right to abortion was constitutionally protected. In a concise paragraph that formed the heart of the opinion, the judges wrote: “On the merits, plaintiffs argue as their principal contention that the Texas abortion laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children. We agree.”
Roe v. Wade was the first decision in which the woman’s right to abortion had been the primary issue. Other recent decisions had touched on the woman’s right but always in a way peripheral to the primary issue of the doctors’ right to do abortions. In Belous, a narrow decision (four to three) by the California Supreme Court, the court had written that the “fundamental right of the woman to choose to bear children follows from the Supreme Court’s and this court’s repeated acknowledgment of a ‘right to privacy’ or ‘liberty’ in matters related to marriage, family, and sex.” But the issue in Belous was the doctor’s right to do abortions, not the woman’s right to decide when to undergo one. Similarly, in Vuitch, Judge Gesell had found that a woman’s mental and physical health could be considered when making the decision to end a pregnancy, but again, that direction was intended to serve as a guideline for the doctor, not the woman. Roe, however, was not about the physician’s rights; it was entirely about the woman’s rights, and as a result reformers hoped it would carry special weight not only with other courts, but also with the public.
The Dallas judges did not limit the woman’s right in any specific way, although they did comment that the right to abortion was not “unfettered.” They pointed out, for example, that a desire to insure medically safe and competent abortions, as well as a possible concern for the quickened fetus, were two interests a state might have in regulating abortion.
The court’s findings also applied to both single women and married persons, something Coffee and Weddington had been worried about after Goldberg had asked so many questions during the oral arguments about a possible tie between promiscuity and women’s access to abortion. The days when courts attempted to enforce specific sexual morals were on the wane, but Coffee and Weddington knew it was still conceivable that the court might decide to give only married women access to abortion. The Griswold decision on birth control had been widely interpreted as applying only to married persons, and not until 1972, two years after the Dallas decision, would the Court, in Baird v. Eisenstadt, find that the right to privacy in matters of birth control extended to single as well as married persons.
Coffee and Weddington were thrilled but only moderately surprised at the decision. All along, they thought things were moving in their favor. They knew they had drawn a good and quite probably sympathetic panel of judges. Then the arguments had gone well for their side, and in contrast the state had not done a particularly good job of defending its abortion law. Coffee had been impressed with John Tolle’s arguments, but she still believed the right of a woman to decide for herself when to terminate a pregnancy was more persuasive than the concept of balancing the rights of the fetus against those of the woman.
Ironically, the attorney general’s office would not have disagreed with opposing counsel’s assessment of the case, although they saw matters in a slightly different light. As far as they were concerned, the selection of judges known for their libertarian leanings had not helped their cause. They thought the arguments revealed that the judges had more or less made up their minds in advance. There was all that talk from Judge Goldberg during the oral arguments about the Ninth Amendment, the way he kept asking counsel to comment on it. They would not air their disappointment publicly at the time but years later would still recall with bitterness their feeling that nothing they said or did in the courtroom had any effect on the deliberations that followed.
Others who followed the case did not consider the state’s view of the deliberations so outlandish. Rumors that the case had been decided in advance circulated for years within the Dallas legal community, and theories of how this came to be were repeated to me fifteen years later with as much clarity as if the case had been decided only a few days earlier. The most popular version held that since Coffee had clerked for Judge Hughes, the two women had probably discussed the case, or that at minimum Coffee had learned what Judge Hughes’s views on abortion were and knew that any challenge to the abortion laws would be welcomed by her. Some people even suggested that Judge Hughes might have encouraged Coffee to bring a test case to the Fifth Circuit.
When I asked Coffee about the rumors, she denied them, saying that had Judge Hughes been inclined to encourage a case in this way, which, Coffee emphasized, she was not, she would not have been likely to choose Coffee as her vehicle: Coffee had not been one of her favorite clerks. Coffee further recalled how busy the Fifth Circuit was in those days, so busy that no one, neither judges nor clerks, had time to spend in the kind of extraneous conversations that uncovered the judges’ views of issues other than those that were related to the case before the court. Furthermore, knowing Judge Hughes’s views on abortion was no guarantee that she would turn out to be the judge who would handle an abortion case. Such rumors, tantalizing as they may be to mull over, must be recognized for what they are: the kind of legal folklore that inevitably builds up around any landmark case.
Unfortunately, little is known about the deliberations that led to the Roe decision. The opinion was issued per curiam, that is, written by the entire court rather than one justice, an action that suggests, if nothing else, a high degree of unanimity among the justices. All signs point to the fact that there was little debate among the justices, although not for the reasons suggested by the state’s lawyers. Irving Goldberg, the only justice still alive when I researched this book, declined to discuss the court’s deliberations with me, except to say, “We deliberated, that I know. We hadn’t made up our minds in advance.”
The official court record, stored in a federal repository in Ft. Worth, was purged of any personal notes, memos, or drafts of the opinion, but Judge Goldberg believed there would have been little of this anyway, because of the way Roe and most other three-judge cases were handled throughout the 1960s. He recalled that most of the Fifth Circuit justices preferred to do circuit work and, as a result, tried to dispatch three-judge cases as expeditiously as possible.
The fact that the Ninth Amendment came up several times during the oral arguments suggests only that the judges had begun researching the case prior to the hearing. From their research, they had obviously discovered that they were interested in exploring the Ninth as the source of the abortion right, should such a right be found to exist. One Dallas newspaper report attributed the court’s interest in the Ninth Amendment to the fact that the Dallas judges had tracked three federal court decisions on abortion—Belous, Vuitch, and Babbitz—in the weeks prior to hearing their abortion case.
The three cases undoubtedly influenced the Dallas judges to find a constitutional ground for an abortion right, but it was the Babbitz decision, a per curiam opinion issued by a three-judge panel in Wisconsin just three months before the Dallas judges began their deliberations, that dealt most directly with the woman’s abortion right, even though the case involved a physician. In that opinion the court found, among other things, that the Wisconsin abortion law was unconstitutional on grounds that it violated a woman’s right to privacy as guaranteed by the Ninth Amendment. The court further declared that any state interest in the fetus was outweighed by the rights of the woman.
It was the use of the Ninth Amendment, according to many legal scholars, that was the most interesting aspect of the Dallas decision. Although it was sometimes included in the list of possible constitutional grounds, no one seriously believed it had much potential for establishing an abortion right. In his article on the constitutional grounds for abortion, for example, Roy Lucas had relegated the Ninth Amendment to a footnote, stating: “Several theoretically feasible but unnecessary constitutional theories are omitted from this discussion. First, whether a physician or an organization could claim a First Amendment right to inform patients as to the whereabouts of competent abortionists. Second, whether the Ninth Amendment, of its own thrust, permits of a fundamental right to abortion.”
Most persons thought the woman’s right to abortion would be found in the Fourteenth Amendment—specifically, in the due process clause of the Fourteenth Amendment, which stated that the rights guaranteed to all individuals in the Constitution could not be violated or withdrawn except by due process of law. But there were reasons not to rely on the Fourteenth Amendment; it was in many people’s eyes a tarnished amendment, especially when applied to a case like Roe v. Wade.
The difficulty lay not with the concept of procedural due process, which was firmly embedded in the amendment, but with substantive due process, a more elusive legal concept. Procedural due process referred to a specific set of procedures (such as informing someone of the crime with which he was charged or of his right to counsel) that had to be applied whenever someone was deprived of a basic liberty. Substantive due process involved broader issues of liberty, such as privacy and the right to an equal education. The government—federal or state—had to show a compelling reason before it could infringe upon these liberties. The Dallas court, though, like the Wisconsin three-judge panel, had clearly rejected the use of the Fourteenth Amendment. Its reasons for doing so could be traced to a judicial dispute over the Fourteenth Amendment that dated back virtually to the moment the amendment had been adopted.
The Fourteenth Amendment, added to the Constitution after the Civil War, was designed specifically to protect the rights of black ex-slaves. By the late 1800s the Fourteenth Amendment, or at least the due process clause, was being subjected to uses its shapers had not foreseen.
At the close of the nineteenth century the United States was in the midst of an enormous and unprecedented economic boom in which huge fortunes were made overnight, often on the backs of exploited workers. The plight of the workers became a cause for social concern, and a drive was begun to improve their situation. At the urging of social reformers, state legislatures began to pass protective labor laws. Inevitably, since so much was at stake for the employers, these new laws were challenged in the federal courts, where the employers soon discovered they had a sympathetic ear. The federal courts and the Supreme Court regularly struck down legislation that was designed to protect workers; in most cases they used the Fourteenth Amendment as their grounds. In the wake of several decisions in which the Supreme Court supported the right of big business to get even bigger, the Court lost popular support and was subject to widespread criticism. Even the Constitution became a target as people charged that it worked for the rich robber barons, but not the poor wage earner.
Matters came to a head in 1905 in Lochner v. New York, a case in which the Supreme Court ruled that a recently passed New York law that limited the number of work hours in a bakery to sixty per week was unconstitutional on grounds that it violated substantive due process under the Fourteenth Amendment by interfering with the right of an employer to contract freely with his employees. In protest, Justice Oliver Wendell Holmes wrote a famous dissent that would provide the philosophical basis for eliminating substantive due process: “A constitution is not intended to embody a particular economic theory. . . . It is made for fundamentally differing views, and the accident of finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
In reaction to Lochner, people’s animosity toward the Supreme Court intensified, reaching a frenzy and making the Court as unpopular as it had been since the infamous Dred Scott decision of half a century earlier. Of the debacle of the Lochner decision, constitutional scholar Laurence Tribe would write eighty years later: “Out of the language of an amendment written to liberate former slaves, the Justices of Cleveland and Harrison thus forged shackles to hobble government efforts to protect the health and welfare of American workers.”
To its discredit, the Court did not immediately back off from its unpopular interpretation of the Fourteenth Amendment, but within a few years Lochner had become a code word for the demise of substantive due process. It would no longer be used regularly to decide cases, especially those involving, as Holmes noted, “economic theory.” The debate over substantive due process lay dormant until 1965, when Griswold v. Connecticut came before the Warren Court.
When Connecticut v. Griswold, the case challenging the Connecticut state law that made the use of contraceptives illegal, came before the Court, the justices agreed the Connecticut law was a bad one. What they could not agree on was how to go about declaring it unconstitutional. In the lower court, the defendants’ counsel had argued, among other things, that marital privacy was protected by the First Amendment, but Justices Hugo Black and Potter Stewart felt otherwise. In the weekly conference to discuss the cases argued the previous week, Black quipped that as far as he was concerned the First Amendment protected the right of assembly, and recognizing the right of a married couple to assemble in bed was a new one to him. While observing that he found the Connecticut law “uncommonly silly,” Stewart agreed.
The real issue for Black and Stewart, however, was the similarity they saw between Griswold and Lochner. Both cases required opinions that could only, as far as they were concerned, be based on judges’ personal values. In other words, any decision in Griswold would have to rely on substantive due process, which the Supreme Court had decided it would no longer use to decide cases.
Justice William Douglas said he believed First Amendment rights were exactly what was involved. If the Court could find that the right to travel was part of the right to assemble, as it had, then this more personal right was surely entitled to the same protection. Noting that Douglas seemed at minimum to be further along in his thinking about the case, Warren asked him to begin drafting an opinion.
A fast worker, Douglas was soon circulating a draft, the most salient feature of which was that it relied on the First Amendment. This heavy reliance on the First Amendment upset Justice William Brennan, who believed in the right to privacy but did not think it was protected by the First Amendment. Brennan suggested that Douglas take another look at Lamont v. Postmaster General, a case decided earlier that term in which Brennan had written that “the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgement those equally fundamental rights necessary to make the express guarantees fully meaningful.”
Douglas liked Brennan’s concept of privacy and subsequently rewrote his draft, relying heavily on Brennan’s idea that certain rights were protected by several different amendments rather than one. Instead of relying exclusively on the First Amendment, Douglas now wrote that the right to marital privacy was also protected by the First, Third, Fourth, Fifth, and Ninth. He stated, “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them life and substance.”
In shaping the argument in this way, Douglas also believed he was circumventing the issue of substantive due process that Black and Stewart had raised at the weekly conference. Acknowledging that some of his brethren thought that substantive due process was an issue, he reminded them, “We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.”
To support his claim that familial privacy was a legitimate and basic freedom worthy of constitutional protection, Douglas pointed to other comparable cases over the past sixty years since Lochner in which the court had ruled on privacy—and had, in many instances, relied on substantive due process to do so.
The vote in Griswold, which was handed down on the last day of the 1964 Term, was seven to two, with Justices Black and Stewart dissenting on grounds that Griswold was a resurrection of substantive due process. They argued that substantive due process should no more be applied to cases involving personal liberties than to those involving economic liberties—and perhaps even less so since the former involved indeterminable issues of public morals.
Justice John Harlan wrote a concurring opinion in which he reiterated a theme he had developed in a lengthy dissent in Poe v. Ullman, an earlier attempt to overthrow the Connecticut birth control law. In it, he expressed his view that the Fourteenth Amendment was a reasonable basis for deciding such cases. It was part of the Constitution, after all, and was furthermore the best standard for deciding when state laws were constitutional. Harlan also observed that the rejection of one line of reasoning, such as due process, would hardly be enough in any event to keep judges’ personal views out of their opinions.
Chief Justice Warren and Justice Brennan also voted with the majority to overturn the Connecticut law, but Warren found Douglas’s opinion overbroad, so he joined a concurring opinion written by Justice Arthur Goldberg, as did Brennan, who had been planning to write his own concurrence but found it too embarrassing to do so after Douglas borrowed so heavily from his Lamont opinion.
Goldberg, aware that the problem with substantive due process had not been, and perhaps never would be, resolved, opted to look for an entirely different constitutional basis for protecting privacy. He found it in the Ninth Amendment. Usually interpreted to mean that those powers not specifically delegated to the federal government were reserved to the states, the Ninth Amendment could, Goldberg wrote, also be interpreted to mean that any rights not reserved to the federal government were reserved to the people.
To support his theory that the Ninth Amendment could be used to strike a state law, he tracked the history of the amendment in his unusually eloquent concurrence. The Ninth Amendment, Justice Goldberg stated, was written almost entirely by James Madison, who introduced it to Congress, where it was passed with “little or no debate and virtually no change in the language.” It “was proffered to quiet the expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.” In The Federalist, where Madison had talked about the Ninth Amendment, he had written that “no language is so copious as to supply words and phrases for very complex ideas.” Applying the standard that was used to protect other basic rights, Goldberg wrote that the protection offered by the Ninth was so fundamental that it could only be abridged when a state showed a subordinating compelling interest. The idea of constitutional protection of privacy that Douglas had painted with such a broad stroke had, by Goldberg, been neatly narrowed: marital privacy was protected under the Ninth Amendment.
From the Dallas judges’ point of view, the most important aspect of the Goldberg concurrence must have been that it provided them with a way around the still controversial issue of substantive due process. Although the Griswold opinion would stand as a legal landmark on several counts, it must not, at least in the eyes of the Dallas judges, have fully resolved the issue of whether substantive due process could be used to decide cases involving constitutional rights. Rather than write a weak opinion that might not stand up under further judicial scrutiny, the Dallas court, like the Wisconsin court in Babbitz, opted to follow Goldberg’s lead and rely on the Ninth Amendment as the basis for the abortion right. Quoting extensively from Goldberg’s concurrence, the Dallas court wrote: “The essence of the interest sought to be protected here is the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals. The manner by which such interests are secured by the Ninth Amendment is illustrated by the concurring opinion of Mr. Justice Goldberg in Griswold v. Connecticut.”
In addition to finding the Texas abortion law unconstitutional on grounds that it violated the woman’s right to privacy under the Ninth Amendment, the Dallas court also ruled that it was vague and overbroad. In making this assessment of the law, the judges did look to the Fourteenth Amendment, stating that the law failed “to provide Dr. Hallford and physicians of his class with proper notice of what acts in their daily practice and consultation will subject them to liability.” The court asked:
How likely must death be? Must death be certain if the abortion is not performed? Is it enough that a woman could not undergo birth without an ascertainably higher possibility of death than would normally be the case? What if the woman threatened suicide if the abortion were not performed? How imminent must death be if the abortion is not performed? Is it sufficient if having the child will shorten the life of the woman by a number of years? These questions simply cannot be answered.
The grave uncertainties . . . under the related abortion statutes are more than sufficient to render the Texas abortion law unconstitutional under the due process clause of the Fourteenth Amendment.
The only setback—a major one—for the plaintiffs was the judges’ refusal to issue an injunction to back up the declaratory relief. Coffee had considered an injunction, which would order the state to stop enforcing its abortion law, vital to winning the case. Only with such an order would women truly have the protection they would need to obtain abortions in Texas. The court indicated, however, that it would consider an injunction tantamount to excessive interference in the affairs of a state, particularly since Dr. Hallford, the intervenor, was involved in a criminal prosecution. While the court acknowledged that there were occasions when a federal court was obligated to intervene to settle a constitutional issue, they did not feel that this was one of them.
The court noted that while Texas had taken no action to revise its abortion law, the fact remained that the state could hardly be accused of acting in bad faith. It was barely enforcing the law, and the plaintiffs had not been harassed—two actions that might have warranted action by the court.
Coffee had argued that the fact that First Amendment rights were infringed upon was enough to create a need for an injunction, but the court had not bought her argument that the abortion right had anything to do with the First Amendment. Citing Porter v. Kimzey, a Supreme Court ruling that stated “the door is not open to all who would test the validity of state statutes . . . by the simple expedient of alleging that prosecution somehow involves First Amendment rights,” the court even chided her a bit for suggesting that it did.
Had Coffee confined her argument to the newer (and admittedly less established) judicial theory that privacy was a fundamental right, would she have had a stronger argument that injunctive relief was required? Certainly, where fundamental rights were found to have been infringed, federal courts had tended to issue injunctions. An injunction had been issued, for example, in Babbitz, the Wisconsin abortion case. But Roe was different, largely because of Dr. Hallford’s criminal prosecution, and the opinion made it quite clear that this weighed heavily in the judges’ minds. It was entirely possible that the Dallas judges would not have seen fit to issue an injunction under any circumstances.
Pleased as Coffee and Weddington were with the overall opinion, they were unhappy over not having gotten injunctive relief. Coffee, in particular, never came to terms with the court’s refusal to grant it. Even though she realized injunctive relief was “a very sensitive point” and that the judicially active Fifth Circuit had greater reason than most federal courts to tread lightly where states’ rights were involved, she still felt it was unrealistic for a federal court to expect a state like Texas to comply with a ruling that involved only a declaratory judgment. For her, the question was not so much whether the federal government should respect Texas, as whether Texas would respect the federal government. Her ominous feelings were soon confirmed.