The Right to Abortion and the U.S. Supreme Court, 1971–1973
Harry A. Blackmun was one of the three new justices of the U.S. Supreme Court to hear oral argument in United States v. Milan Vuitch on January 12, 1971, who had not been members of the Court when Griswold v. Connecticut was decided in June 1965. Justice Thurgood Marshall, a former federal appellate judge far better known as the NAACP chief counsel who had successfully argued Brown v. Board of Education, had been promoted to the high court from his post as U.S. Solicitor General when Justice Tom Clark stepped down in 1967. The second newcomer, Chief Justice Warren E. Burger, a Minnesota native and a longtime federal circuit judge in the District of Columbia, had joined the Court in the summer of 1969 following the retirement of Earl Warren. An Eisenhower-era Justice Department official and an active participant in Republican politics before ascending the bench, Burger had been nominated for the post by newly elected Republican President Richard M. Nixon after Lyndon Johnson’s 1968 attempt to promote Justice Abe Fortas, a close friend whom Johnson had named to replace Arthur Goldberg three years earlier, to Warren’s seat had failed in the Senate. Fortas’s nomination to be chief justice had foundered amidst senatorial apprehension that his personal finances and his cronylike relationship with Johnson had each led to repeated violations of judicial ethics, and Nixon thus inherited the opportunity to name Warren’s successor. Just a few weeks before Burger’s confirmation, however, Nixon was presented with a second vacancy when new and more serious revelations of Fortas’s financial indiscretions forced him to resign from the Court in disgrace.
Nixon’s first two nominees for the Fortas seat, Fourth Circuit Chief Judge Clement F. Haynsworth, Jr., and undistinguished Fifth Circuit Judge G. Harrold Carswell, were both rejected by the Senate after difficult and bitter confirmation fights, and only in May 1970 had Nixon’s third candidate, Harry Blackmun, an eleven-year veteran of the Eighth Circuit Court of Appeals, finally won unanimous Senate confirmation to fill the long-vacant seat. A childhood friend of Warren Burger, the sixty-one-year-old Blackmun grew up in St. Paul, Minnesota, and graduated from both Harvard College and Harvard Law School before returning home to practice law. In 1950 Blackmun became resident counsel at Minnesota’s famous Mayo Clinic, and nine years later he was named to the federal appellate bench. He had seemed an unremarkable as well as an uncontroversial choice for the high court after Nixon’s two setbacks in attempting to name conservative southerners, and when Blackmun formally joined the Court in June 1970 he like Burger was believed to be a conventionally conservative Republican. Indeed, the two men’s shared roots and presumably similar ideologies led some journalists to call them the “Minnesota Twins.”
None of the three new justices had yet made a distinctive impact upon the Court. Thurgood Marshall was appreciated by his colleagues and by his own clerks as a talented storyteller whose liberal instincts would usually place him on the same side of controversial cases as William J. Brennan and William O. Douglas. Warren Burger certainly looked like a chief justice, and during his first year in the job many members of the small Court community had begun to think that the new “Chief” took more pleasure in the ceremonial aspects of his post than in the intellectual ones. Blackmun’s first few months at the Court had occasionally reflected such uncertainty that some clerks in other chambers wondered when if ever the new justice would finally begin to grow into the job and establish himself apart from Warren Burger. A few abortion litigators had heard talk that Blackmun was a good friend of Mayo’s Dr. Joseph H. Pratt, Jane Hodgson’s most prominent Minnesota medical supporter, and even that Pratt had been Mrs. Blackmun’s doctor, but no one was inclined to count either Blackmun or Burger as likely supporters of Griswold-style constitutional protection for a woman’s right to choose abortion.1
Roy Lucas and other abortion lawyers understandably attached far greater importance to United States v. Vuitch than did any of the justices of the Supreme Court, and the night before the January 12 oral argument Lucas and Norman Dorsen spent several hours in a Capitol Hill hotel going over the constitutional points and potential questions with which Dorsen might have to cope. Only the next morning, just before the argument itself, did Dorsen and Joseph Nellis, who would be primarily responsible for addressing the jurisdictional issues on behalf of Vuitch, meet for the first time in the Court’s lounge to discuss how they would manage the unusual one full hour of argument time that the Court had allocated to each side.2
When the actual argument got underway shortly after ten a.m., however, the first speaker was the government’s representative, Samuel Huntington of the Solicitor General’s office, whose task was to persuade the nine justices that Judge Gesell had erred in holding that the District of Columbia antiabortion statute—and particularly its crucial word, “health”—was unconstitutionally vague. Responding to the questions posed by the Court six months earlier, Huntington maintained that the high court did have proper jurisdiction of the government’s direct appeal from Gesell’s ruling and that the D.C. criminal statute should apply to cases “where a doctor has made no attempt to determine whether or not health reasons exist which would justify an abortion.” He added that “the constitutional rights asserted here are novel and for the most part unexplored,” and Justice Potter Stewart broke in to ask if it should not automatically be assumed that any abortion performed by an accredited doctor was in the interest of a woman’s health. Huntington replied that “the term health means he has to make an examination of the woman and determine that because of some condition”—at which point Stewart interrupted to say that the condition was pregnancy, drawing audience laughter—“beyond the mere fact that she is pregnant.” Stewart persisted, suggesting that “whenever a doctor in good standing performs an abortion, that’s the end of it, it’s not a criminal act,” and Huntington said no, that a doctor must “make a good faith judgment that there were special conditions” that merited an abortion.
Huntington further asserted that the Court should restrict itself to the vagueness issue in reviewing the merits of Gesell’s ruling, and not consider other points such as privacy, for “the very fundamental question” of abortion itself was “peculiarly within the province of the legislature.” Additionally, Huntington said, the government’s position was that “the statute reflects a desire to protect fetal life,” but Justice Hugo Black asked “Why do we have to get into the fetal life problem when the statute is limited to preserving the health or life of the mother?” Huntington answered that “where the mother’s health doesn’t require an abortion, the fetus should be protected,” and when Justice Blackmun asked if he was correct in thinking that under the D.C. statute a woman would not be able to obtain a legal abortion because of a rubella-scarred pregnancy, Huntington replied in the affirmative. Huntington concluded his remarks after forty-five minutes by recommending to the Court the writings of several antiabortion legal scholars, and Chief Justice Burger, with an eye toward saving time, announced that while Huntington would be given five minutes for subsequent rebuttal, each side’s time was being reduced from sixty to fifty minutes.
Joseph Nellis began Vuitch’s presentation with an articulate explanation of why the Court did have jurisdiction of the appeal. He asserted that the subject was “a matter of landmark and historic importance in the area of constitutional law” and reminded the justices that “there are myriads of cases brewing in the lower courts.” Potter Stewart invited Nellis to address the vagueness issue, but Hugo Black broke in to ask whether a woman had a right “to kill it.” Nellis answered, “Well, your honor, I don’t accept the notion that the abortion of an embryo before the twentieth week, before the common law quickening, is an act of killing at all.” Black replied, “Well, suppose it’s after that?” Nellis responded that postquickening there would have to be serious health grounds for an abortion, and Black interjected, “you mean to dispose of the child.” Nellis tried to counter Black’s usage, and the justice replied that “I’m not saying it’s wrong; I just don’t care to be cluttered up in a maze of words that mean something else.” Nellis reacted tactfully. “Mr. Justice Black, I am not trying to obfuscate my answer. I cannot accept, if you don’t mind my saying so, the word ‘child’ as related to a fetus.”
Black allowed Nellis to move on, but when Nellis reiterated that the abortion issue was of “enormous national significance,” Chief Justice Burger observed that the court might benefit from a case record offering more extensive medical evidence. Justice Blackmun noted that federal three-judge court decisions on abortion statutes included rulings both for and against, and when Nellis in expressing agreement made reference to the initial Minnesota refusal in Jane Hodgson’s case, Blackmun replied that “I had this in mind.” Nellis volunteered that “the multiplicity of suits which will be reaching—are reaching this Court now—could be very deftly and intelligently approached by a decision here,” and when Blackmun interjected that some of these other cases, unlike Vuitch, would feature full trial records, Nellis gently demurred, replying that “there is nothing in the way of a factual record that would either enhance or detract from the ability of this Court to determine that right of privacy.”
Justice Byron White gruffly asked Nellis how the statute’s supposed vagueness could be challenged by a physician who simply provided abortions on request, and when Nellis answered that only nondoctors ought to be covered by a criminal abortion statute, White asked him what about cases where a woman seeking an abortion was in perfect health. Nellis responded that “health” as a word was inherently vague, and as White kept after him, Nellis finally declared that “I don’t feel cornered.” “No, you shouldn’t,” White replied, and as laughter spread through the courtroom, Nellis added that “socio-economic reasons in modern-day society approach health reasons.” White refused to let go, and only several questions from Chief Justice Burger curtailed the White-Nellis exchange before it came time for Norman Dorsen to begin the second half of Vuitch’s presentation.
Dorsen started with the vagueness issue, citing the California Supreme Court decision in Belous and noting each of the operative and arguably imprecise words in the D.C. statute: “necessary,” “preserve,” “life,” and “health.” Dorsen asserted that doctors’ own standards were the only dependable criterion, and Justice Blackmun broke in, saying that “I shouldn’t go on my own experience, but I have seen physician after physician say the same thing about malpractice that you have just said.” Chief Justice Burger pursued the point, and Dorsen handled his queries superbly, emphasizing that only in the context of abortion was there a criminal threat hanging over a physician that instructed the doctor to act counter to the interests of the patient. “Underlying this case, in our judgment,” Dorsen continued, “is a basic constitutional right, recognized by Judge Gesell—and he did not rule on the point specifically—and by courts in many other jurisdictions, that it is a right of a woman to make her own decision, unaffected by the criminal law of the state, whether or not to bear a child.” Byron White broke in: “At any stage?” Dorsen parried. “We are not making the claim of any stage in this case. Certainly we would say up to the point where the embryo is viable.” White responded, “Why does it become a different problem in terms of that fundamental right of the woman not to bear a child?” Dorsen ducked: “Now, this is a question I would not have an answer to in this particular case.” “It is a difficult question, isn’t it?,” White asked. “Yes, it is,” Dorsen agreed. “To draw a distinction,” White added. “Yes, it is,” Dorsen repeated, “and we are making the claim, as spelled out at some length in our brief, that certainly up to the traditional lines of twenty, twenty-two, twenty-four weeks there is a right of a woman to have an abortion.”
Potter Stewart joined in: “You mean a constitutional right?” “That’s correct, sir,” Dorsen replied. “Under which provision or provisions of the Constitution?,” Stewart asked. “Well, I would rely on the liberty of the woman” as protected by the language of due process, Dorsen answered. “The right comes from the liberty of the individual,” he continued, citing Skinner, Meyer, and Griswold. “The position, in other words, is a position based upon both the right of privacy and the liberty of—.” Stewart cut him off: “What does this really have to do with the right of privacy?” “I would suggest that if a woman wishes to use her body in a way which would mean disposing of the embryo, that that is a choice that she can make” and that a doctor should be able to implement without criminal sanction, Dorsen responded. “It’s the use of the woman’s body, which she has dominion over.”
Warren Burger asked what about the rights of the father. Dorsen explained that his answer was that “It’s the woman’s right and not the father’s right; that it is her body and that she should have the right to make the awesome decision of whether or not to bear the child.” Justice Blackmun asked whether this ultimately would entail a right to commit suicide. “I’m not sure,” Dorsen twice replied. “I’d be inclined to think it would, but I am not sure.” Another justice pursued the suicide comparison, and Dorsen answered that with regard to abortion, “We’re not dealing here with a human being in the same sense as a suicide case suggests.” Several justices suggested that if Dorsen was correct about suicide, then a person could instruct a doctor to amputate their right arm, and when Dorsen indicated he had trouble with the hypothetical question of the arm, one questioner replied that “If you have trouble with the arm, I think you would have trouble with the abortion,” especially if “the unborn child has some rights.” Dorsen had only enough time remaining to cite retired Justice Tom Clark’s law review article, and the morning’s argument concluded with Samuel Huntington briefly reiterating his earlier insistence that a doctor must identify specific health grounds for any abortion. Huntington amended his earlier answer to Blackmun’s rubella question, allowing that such a circumstance might well raise questions of psychological health, but both Justice Black and Justice Marshall reacted with skepticism to Huntington’s basic contention.3
Interested observers found the court’s reactions inconclusive. Cyril Means thought Black’s repeated invocation of the word “child” was extremely unpromising, and while Larry Lader thought Dorsen had done a good job, Dorsen himself was wracked with worry that he had not done well enough. Dorsen had another case to argue before the high court just two days later, and while he enjoyed a pleasant dinner with Dr. and Mrs. Vuitch, he dropped a subsequent note to Roy Lucas expressing frustration about how difficult it was to tell how the Court was leaning.4
Although the jurisdictional questions which the Court had formally posed to the Vuitch parties six months earlier had drawn surprisingly little attention at oral argument, even before the nine justices convened three days later for their private conference discussion of the case, John Harlan circulated a memo to his colleagues informing them that he had tentatively concluded that the Court did lack jurisdiction over the government’s direct appeal. At the conference itself, however, Chief Justice Burger began the discussion of Vuitch by stating that he disagreed with Harlan about jurisdiction and believed they should reverse Judge Gesell on the merits. The language of the D.C. statute was not vague and the charges against Vuitch should not have been dismissed. Burger indicated that while he had not been impressed with either side’s arguments, he definitely rejected Dorsen’s contention that a woman has an “absolute right to decide what happens to her own body.” Burger also noted that Jane Hodgson’s Minnesota case was “on its way to the Minnesota Supreme Court” and then “will soon be here,” and hence would offer a subsequent opportunity to address the constitutional merits of abortion law challenges.
Hugo Black agreed with the Chief Justice. The Court did have jurisdiction, and the D.C. law was not vague. There was “no right to an abortion” and Gesell “has no right as a judge to create that right.” Additionally, Black said he too “can’t go with [a] woman’s claim of [a] const[itutional] right to use her body as she pleases.”
William O. Douglas differed, saying they should affirm Gesell’s ruling and that they did have jurisdiction. Laws could regulate the performance of abortions and still be constitutional, but the D.C. language was vague. “The definition of what is meant by health must be very broad today,” Douglas professed. “Does this statute sufficiently notify [a] doctor [as to] what that means?” Douglas believed the answer was no.
John Harlan indicated that he still did not think the direct appeal was properly within the Court’s jurisdiction, but if his colleagues were going to rule on the merits of Gesell’s decision, Harlan believed that the statute was not vague and that the ruling below should be reversed. William J. Brennan stated that while he fully agreed with Harlan’s memo that the Court did not have jurisdiction of the appeal, on the merits he agreed with Bill Douglas that Gesell had been correct in finding the D.C. law unconstitutionally vague.
Potter Stewart, the sixth justice to speak, maintained that they did have jurisdiction. Stewart went on to explain that while he like Douglas believed that “health” had to be given a very broad definition, that to him meant that Gesell’s ruling should be reversed, since an appropriately liberal “saving” construction could be provided for the D.C. law. Stewart added, however, that the specific charge against Vuitch should indeed be dismissed, for he believed, as he had indicated at oral argument, that no licensed physician could be prosecuted under any such statute.
Byron White stated that the Court had jurisdiction and that the D.C law, in the absence of any trial record, was not facially vague. Thurgood Marshall said that he was not sure with regard to jurisdiction but would reverse Gesell on the merits, for “every doctor knows the meaning” of the statute and ought to “take his chances with a jury.” The Court’s junior justice, Harry Blackmun, said that he was troubled on the question of jurisdiction and had found Harlan’s argument appealing. He was unpersuaded by Gesell’s contention of vagueness, and hence on the merits would vote to reverse.
The outcome of the Court’s discussion of Vuitch was clear but somewhat complicated. A clear majority of at least five—Burger, Black, Douglas, Stewart, and White—believed that the Court did have jurisdiction to decide the appeal, and a decidedly larger majority of seven—Burger, Black, Harlan, Stewart, White, Marshall, and Blackmun—clearly believed that Gesell’s vagueness ruling was erroneous and should be reversed. Warren Burger waited almost two weeks before finally assigning the task of preparing a majority opinion in the case to the ageing Hugo Black, but by the second week of February one of Black’s three law clerks, Robert W. Spearman, was finishing work on a eighteen-page typescript draft of an opinion that would affirmatively answer the question of jurisdiction and firmly reverse Gesell’s decision on the merits.5
The Court’s consideration of Vuitch had led the justices to postpone any discussion of the other abortion-related appeals and petitions which had been arriving since early in the fall. Even before Christmas the Court had put off any dispositive action on either of Jane Hodgson’s pretrial petitions until decisions were ready in several nonabortion cases also involving requests for federal court action against state criminal prosecutions, and one week before the Vuitch conference the justices had deferred any consideration of either Roe v. Wade or Doe v. Bolton until after work on Vuitch was completed.6
In late January, however, one more abortion case began to head for the high court when a federal three-judge panel in Chicago held Illinois’s antiabortion law unconstitutional by a two to one margin. Seventh Circuit Court of Appeals Chief Judge Luther M. Swygert, joined by Chief District Judge Edwin A. Robson, held that the exception language of the Illinois statute, allowing those abortions “necessary for the preservation of the woman’s life,” was unconstitutionally vague. Observing how some judicial panels had endorsed vagueness attacks upon such statutes while others had rejected them, Swygert emphasized that “If courts cannot agree on what is the essential meaning of ‘necessary for the preservation of the woman’s life’ and like words, we fail to see how those who may be subject to the statute’s proscriptions can know what it prohibits.” Both “necessary” and “preservation” were “gravely amorphous” words, Swygert concluded. Then he went on to say, with several citations to retired Justice Tom Clark’s law review article, that the entire constitutional question of abortion was indistinguishable from that of Griswold. “A woman’s interest in privacy and in control over her body is just as seriously interfered with by a law which prohibits abortions as it is by a law which prohibits the use of contraceptives.” Swygert noted the earlier decisions in Belous, Vuitch, Babbitz, and Roe, and explained that “the critical issue is whether the state has a compelling interest in preventing abortions.” He answered that question by asserting that “a statute which forces the birth of every fetus, no matter how defective or how intensely unwanted by its future parents, displays no legitimately compelling state interest in fetal life.” At least during the first trimester of pregnancy, he and Robson held, state laws could regulate the performance of abortions only to the extent of requiring that they be performed by doctors and in licensed facilities. In line with that declaratory judgment, and unlike the earlier panels in Roe and Doe, Swygert and Robson issued a permanent injunction barring any future enforcement of the Illinois antiabortion statute.
Senior District Judge William Campbell’s dissent rejected Swygert’s comparison of abortion and contraception and cited Steinberg v. Brown, the earlier federal court decision upholding Ohio’s abortion statute, in arguing for the importance of fetal life. One of the two principal defendants, Cook County State’s Attorney Edward V. Hanrahan, announced that he would immediately appeal both the decision and the issuance of the injunction to the Supreme Court, and on February 10 Justice Marshall granted a motion staying Swygert and Robson’s injunction until such time that the full Court chose to act on the defendants’ appeal.7
Three days after the issuance of the Chicago decision the three-judge panel considering the declaratory judgment suit against North Carolina’s reform statute rejected the plaintiffs’ basic challenge while nonetheless finding that the law’s residency requirement was a violation of the right to travel. “Whether or not to bear a child is ordinarily and up to a point within the zone of privacy of a woman,” Circuit Judge Braxton Craven wrote for the panel, and “she has the right to be let alone in making that determination. In short, it is none of the state’s business whether a woman chooses to become pregnant.” However, he added, “We do not find that an equation of the generalized right of the woman to determine whether she shall bear children with the asserted right to abort an embryo or fetus is compelled by fact or logic.” The opinion then proceeded directly but without any attribution to exactly repeat several sentences that had appeared six months earlier in Circuit Judge Robert Ainsworth’s opinion in Rosen upholding Louisiana’s abortion statute: “Exercise of the right to an abortion on request is not essential to an effective exercise of the right not to bear a child, if a child for whatever reason is not wanted. Abstinence, rhythm, contraception and sterilization are alternative means to this end.…” Contrary decisions such as Babbitz and Roe involved “a value judgment not committed to the discretion of judges,” the Charlotte panel concluded.8
That setback in Corkey v. Edwards brought to five the number of cases against state abortion statutes that had been rejected by federal three-judge panels: Minnesota, Louisiana, Missouri, and Ohio in addition to North Carolina. Only Babbitz, Roe, Doe, and the Illinois ruling could be counted in the victory column, but most activists agreed with Colorado’s Richard Lamm, who expressed an attitude of “hopeful anticipation” toward the Supreme Court and told an early 1971 abortion symposium that “the major wave of future change lies with the courts,” not state legislatures. Oregon Senator Robert Packwood, who already had emerged as the most outspoken congressional champion of a right to abortion, expressed a similarly optimistic perspective at that conference and explained to participants that “most of the legislators in the nation I have met and many members of Congress would prefer the Supreme Court to legalize abortion, thereby taking them off the hook and relieving them of the responsibility for decision-making.”9
Lamm emphasized at that gathering, as he had previously to Texas’s Ginny Whitehill, that legislative activists had to “go for repeal only—reform is not only no compromise but is counterproductive” to the real goal of achieving repeal. “If an ALI bill,” like the one he had successfully sponsored just four years earlier, “is introduced by compromise-minded politicians,” Lamm added forcefully, “it should be fought.” In virtually every state where a repeal bill had been introduced in the legislature, however, prospects for passage appeared to range between bleak and nonexistent. One had been voted down in the Montana house by a margin of 95 to 5, and in New Mexico one had been rejected in the state senate on a tally of 34 to 9. In Iowa the state house voted 55 to 45 against such a measure, and other repeal bills went down to defeat in Minnesota, Maryland, Colorado, and Massachusetts.10
Georgia repeal proponents succeeded in winning house committee approval for a repeal bill with a relatively narrow sixteen-week limit and a modest ten-day residency requirement, but several days later principal legislative sponsor Killian Townsend announced that he was withdrawing the measure because prorepeal doctors at Atlanta’s Grady Hospital “told us they thought it would be worse if it passed at sixteen weeks than if it didn’t pass at all.” Judy Bourne explained to reporters that most Georgia women were traveling to New York City for abortions, but New York activists were becoming increasingly worried that conservative opponents in the legislature might try to reverse the one-vote victory that the repeal forces had eked out a year earlier. New York Governor Nelson Rockefeller had publicly indicated his willingness to accept a reduction in New York’s statutory ceiling from twenty-four weeks to twenty, and repeal supporters feared that legislative consideration of a possible dilution of the 1970 law would open the door to a complete rollback. Many activists were livid when ASA president Bob Hall asserted in an op-ed piece in the New York Times that a residency requirement should be implemented and that all abortions should be performed in hospitals, and by early April repeal partisans were warning their supporters that the 1970 statute “is now in severe danger in the legislature.” Governor Rockefeller sought to allay such concerns by emphasizing that he would veto any flat-out repeal of the 1970 measure, but he also indicated that the state was about to halt Medicaid funding for poor women’s abortions. No up or down vote on the 1970 law would come until May or June, but the New York situation was not helped when President Richard M. Nixon publicly declared that abortion was “an unacceptable form of population control” and emphasized his “personal belief in the sanctity of human life—including the life of the yet unborn.”11
NARAL executive director Lee Gidding, who had more direct contact with local level activists across the country than any other person, had felt for some months that the efforts of abortion opponents had been on the upswing ever since the New York measure had been approved a year earlier. In New York itself, as in the fall referendum campaign in Washington state, much of the opposition appeared to be emerging from the Roman Catholic hierarchy and from the newly visible National Right to Life Committee (NRLC), which had initially been created at the behest of Father James McHugh of the U.S. Catholic Conference’s Family Life Division. NRLC lawyers in particular enthusiastically welcomed several late-February Supreme Court decisions in nonabortion cases that appeared to prohibit any federal court injunctive relief against state statutes such as that which the Chicago panel had granted with regard to Illinois’s abortion law, and one of the opinions also indicated that even declaratory judgments against such statutes might now be infirm if the federal case had been brought on behalf of someone who already was facing related state charges—a ruling that likely would cover Doctors Rosen and Hallford and perhaps the first of Jane Hodgson’s two appeals.12
Antiabortion forces, however, were not limited to the hierarchy around the NRLC, and even in Georgia opponents of repeal had outnumbered proponents by more than four to one at the 1971 legislative hearing. In late March Time magazine observed that there were more and more signs that antiabortion forces were “gaining momentum,” and NARAL’s Lee Gidding told one friend it increasingly looked as if “this is not our year.” Perhaps the one legislative bright spot, relatively speaking, was Michigan, where the state senate had passed a quasi-repeal bill allowing a woman to choose abortion during her first three months of pregnancy, but proponents estimated that the measure had a less than fifty-fifty chance of winning approval in the state house.13
One of the most energetic 1971 legislative repeal campaigns was mounted in Texas, where the new confederation of Dallas, Austin, and Houston activists, the Texas Abortion Coalition (TAC), recruited two prominent legislative sponsors—state Senators Tom Creighton and Don Kennard—for a well-crafted repeal bill. Overcoming a variety of personal and stylistic tensions that led the Dallas women to create a separate group, Texas Citizens for Abortion Education, TAC organized a major public event in Austin to launch the repeal campaign, at which both Jane Hodgson and Roy Lucas appeared as featured speakers. Austin activist Vic Foe had solicited additional endorsements from various notables such as Alan Guttmacher, and Texas reporters noted that among the supportive telegrams read at the symposium was one from U.S. District Judge Sarah T. Hughes, who told the group that “I wish you well in your educational program on this important topic.”14
Hodgson and Lucas were also honored guests at a well-publicized reception in Dallas, and while considerable press attention was devoted to Dr. Hodgson and her courageous test case stand, the Fort Worth paper also noted how Lucas “will be the lead counsel pleading the Texas abortion case before the Supreme Court.” While everyone waited to see what the Supreme Court might do with the Roe appeal, the Dallas three-judge panel quietly denied a request for an injunctive order under Roe’s rubric that had been filed some weeks earlier by Dallas Legal Services on behalf of a very young teenager who was seeking an abortion after having been raped by her father. The panel seemed to indicate that such a request was simply too far distant in time from their previous decision in the case, and public coverage of the Texas abortion scene focused on the upcoming legislative struggle as repeal proponents emphasized that no bill would be preferable to enactment of a reform measure that might very well have the effect of mooting Roe.15
Prospects for the Creighton-Kennard repeal bill did not look bright. Some legislators cited the Roe appeal as a reason why no action was necessary, and one of the state’s major papers, the Dallas Times-Herald, called repeal “morally repugnant” while recommending the swift defeat of “a bill that would confer official sanction on a latter-day slaughter of the innocents” simply on account of “the whim of a momentarily inconvenienced mother.” On March 29 several dozen witnesses, including Colorado’s Dick Lamm and Dallas’s Claude Evans, testified at a senate hearing on the Creighton-Kennard bill before an overflow audience of more than seven hundred people, but the Austin women, who had not signed up in advance to be among the speakers, were deeply disappointed when “nowhere in the presentation supporting the bill was the chief issue raised: the right of a woman to control her own body.” Thanking Lamm for his visit, Dallas’s Ginny Whitehill conceded that the prospects for success did not “look too promising,” and while the committee approved the bill two weeks later, Senator Kennard readily acknowledged that he did not yet have the votes necessary to obtain passage on the senate floor.16
The same day that the senate hearing took place in Austin, the U.S. Supreme Court, citing its late-February rulings limiting federal court action against state statutes which plaintiffs otherwise could challenge in state court proceedings, vacated and remanded the declaratory decision voiding the Texas sodomy law that Henry McCluskey had won fourteen months earlier from the Dallas panel of Goldberg, Hughes, and Taylor. Texas newspapers speculated as to whether that dismissal might promise similar Supreme Court action in Roe, and the Texas activists feared that they might face setbacks on both the legislative and judicial fronts. The Texas Catholic Conference was taking a decidedly low-key stance in opposing liberalization, but a mid-April hearing on the house side of the state capitol brought forward a slew of non-Catholic repeal opponents as well as a prominent newspaper editorial opposing “abortion on impulse.”17
The Austin Women’s Liberation group had continued its undramatic but valuable abortion referral work on an all but daily basis, and by the spring of 1971, as word of the service spread far beyond the university community, the Austin group found themselves assisting an average of more than thirty-five women a week. The Austin women were not the only avowedly feminist network which was augmenting the more heavily advertised ministerial referral work being carried out by Howard Moody’s Clergy Consultation Service and by such local volunteers as Atlanta’s Emmett Herndon, Dallas’s Claude Evans, and Austin’s Bob Breihan, but in Chicago another feminist group, operating even more discreetly than the Austin women, had almost by accident taken the work of abortion referral a crucial step further.18
The Chicago Women’s Liberation Union had begun an abortion counseling service in late 1969, with several housewives from the city’s Hyde Park neighborhood and a number of graduate students from the University of Chicago among the early activists. At first the group had channeled its referrals to several men who they believed were doctors and who, after some lobbying, had agreed to a reduced fee of two hundred seventy-five dollars per abortion. Several of the group members assisted with the medical procedures, and in time one of the men taught one of the women the relatively simple task of how to perform the actual abortions. Shortly thereafter, early in 1971, the women happened to discover that the “doctors” were not physicians at all. From that initially surprising realization soon flowed a conclusion that was as powerful as it was natural—that “if he can do abortions, we can do abortions.” Dispensing with the men, and reducing the onerous two-hundred-seventy-five-dollar fee to a maximum of one hundred dollars, the women carefully began to perform the procedures themselves and to teach the basic skills to additional members of the group. Using each others’ apartments both as staging areas and as the locations for the actual abortions, the women expanded what had begun as a counseling service into an actual service-delivery organization that was performing approximately twenty-five abortions a day, three days a week—a total of approximately three hundred abortions each month. From the pseudonymous name they initially had employed when taking or returning women’s phone calls—“This is Jane from Women’s Liberation”—the service itself came to be called “Jane,” a quasi-code name reflecting both the discretion and the communal identity involved in its work. Troubled with police attention only once, “Jane” never experienced a fatality and performed thirty-five hundred abortions a year for Chicago-area women who otherwise might have paid far more to a potentially far less skillful provider or been left to carry an unwanted pregnancy to term.19
Early in March of 1971, just as the Supreme Court was announcing that it would hear Massachusetts’s appeal of the First Circuit decision that had struck down the state’s anticontraception law in Bill Baird’s case,20 the group of young feminist women in New Haven who had been discussing a possible legal challenge against Connecticut’s abortion statute for more than a year finally filed suit in federal court. Katie Roraback had been recruited as one of several female attorneys to handle the case, and while a repeal bill covering the first twenty weeks of pregnancy had been introduced in the state legislature with the support of the Connecticut State Medical Society, repeal proponents gave the court case a far better chance of success than the legislative measure, which soon went down to a resounding 132 to 28 defeat just a few weeks after the suit was initiated.21
Shortly after the Connecticut case began, the Vermont chapter of a rapidly expanding two-year-old group with an active interest in abortion law repeal, Zero Population Growth (ZPG), sponsored a state court case against the existing Vermont statute brought by Burlington attorney Willis E. Higgins on behalf of six women and eleven doctors.22 Three days later, on April 19, however, just as had happened with Henry McCluskey’s Buchanan suit, the U.S. Supreme Court, with only Justice William O. Douglas dissenting, vacated the three-judge decision that had held Wisconsin’s abortion statute invalid in Babbitz v. McCann and remanded the case to the lower court for reconsideration in light of the late-February rulings limiting federal court intervention against state statutes. Milwaukee’s Dr. Babbitz had recently retired to Florida, but in far more liberal Madison, the home of the University of Wisconsin, Dr. Alfred Lee Kennan, a forty-five-year-old former full professor at the university’s medical school, had privately opened a full-scale abortion clinic, the Midwest Medical Center, ten weeks earlier. Dane County District Attorney Gerald C. Nichol had met with Kennan and Kennan’s attorney, David Pappas, the day after the clinic opened, to assert that the Babbitz ruling did not bar him from enforcing Wisconsin’s abortion statute. Nothing further transpired, however, until Friday, April 16, when a seventeen-year-old young woman from Minnesota and a girlfriend were accosted as they were leaving Kennan’s clinic by Madison police, who had been contacted by the young woman’s furious mother. The parental and police endeavor was a bit too late, however, for the young woman displayed a receipt for payment of two hundred dollars, but the day’s events convinced Nichol that now he should act. On Monday morning, just as the Supreme Court was remanding Babbitz, police officers acting at Nichol’s behest and armed with a search warrant swooped down on Kennan’s clinic, seizing all of his medical instruments and all of his patient records. The following day Kennan and Pappas filed suit against Nichol in federal court, seeking a declaratory judgment against the abortion statute as well as an immediate order blocking any further action and requiring Nichol to return the seized materials. U.S. District Judge James E. Doyle immediately issued a show-cause order directing Nichol to appear in court on April 26, but the very next day, April 21, Nichol filed criminal abortion charges against Kennan and several assistants and simultaneously moved for a state court injunction barring Kennan from performing any further abortions.
The day after the April 26 federal court hearing, Judge Doyle issued a temporary restraining order prohibiting Nichol from proceeding against Kennan and instructing the district attorney to return the instruments and records he had seized. At the same time, however, the state board of medical examiners announced an investigation of Kennan, thereby effectively inhibiting him from resuming abortion services. Nichol without success tried to get first the Seventh Circuit and then Supreme Court Justices Marshall and Harlan to stay Doyle’s restraining order, and on May 5 Doyle issued a second order, directed against state Attorney General Robert Warren and the medical examiners, blocking any further efforts to pursue additional actions against Kennan. Three days later Doyle extended his order to include a state court judge before whom the prosecutors’ request for an antiabortion injunction was pending, and finally, on Monday, May 17, four weeks after Nichol’s raid, Kennan reopened his clinic and resumed performing abortions while the district attorney appealed Doyle’s orders to the same three-judge panel handling the remand of Babbitz.23
The very same week that the battle of Madison commenced, the U.S. Supreme Court publicly announced its decision in United States v. Milan Vuitch. Justice Black had circulated an initial draft of a majority opinion to his colleagues on February 17, and within twenty-four hours John Harlan politely served notice that he soon would circulate an opinion contending that the Court lacked jurisdiction of the government’s direct appeal of Judge Gesell’s decision. William O. Douglas, who differed with Harlan on jurisdiction and with Black on the merits, circulated a dissent contending that Gesell should be affirmed, and while Warren Burger quickly endorsed Black’s draft, several weeks passed without further developments as other justices such as Harry Blackmun waited to read Harlan’s dissent on the jurisdictional question before committing themselves one way or the other on the Black opinion.
Only in late March did matters finally jell. Justices Blackmun, Brennan, and Marshall all endorsed Harlan’s analysis that the Court lacked jurisdiction of the appeal. Of the other five justices who did believe the Court had jurisdiction, however—Black, Burger, White, Douglas, and Stewart—only the first three were willing to join Black’s analysis of why Gesell should be reversed on the question of vagueness. Faced with such a splintered situation, first Blackmun and then Harlan, both of whom agreed with Black that Gesell had erred on the merits, moved to give Black a five-vote majority for the second portion of his opinion by formally agreeing that the D.C. abortion statute was not unconstitutionally vague while nonetheless dissenting from the other majority holding that the Court did have jurisdiction. With Douglas and Stewart joining Black with regard to jurisdiction, although not on the merits, Black’s two-part opinion was able to garner two different five-vote majorities. On April 21 the Court’s complicated resolution of United States v. Vuitch was publicly announced.24
Hugo Black’s ten-page opinion of the Court dispensed with the jurisdictional issue routinely and declared that Gesell had made a mistake in finding that “health,” the crucial word in the D.C. statute, was unconstitutionally vague. So long as “health” was correctly understood as including “psychological as well as physical well-being,” Black said, the D.C. law was quite amenable to forthright application by Washington physicians. At John Harlan’s request, Black had deleted three sentences from one footnote which Harlan thought might “intimate a view on the merits of the so-called Griswold issue,” and hence with regard to the merits of the D.C. abortion statute the Black opinion expressly emphasized that “Since that question of vagueness was the only issue passed upon by the District Court it is the only issue we reach here.” William O. Douglas’s dissent from the vagueness reversal, however, quite explicitly indicated his view of the broader question as well. “Abortion touches intimate affairs of the family, of marriage, of sex, which in Griswold … we held to involve rights associated with several express constitutional rights and which are summed up in ‘the right of privacy.’” With abortion as with contraception, Douglas added, “There is a compelling personal interest in marital privacy and in the limitation of family size.”
The one other substantive opinion in the case, Potter Stewart’s partial dissent on the merits, closely followed his earlier comments at the Vuitch conference. “I share at least some of the constitutional doubts about the abortion statute expressed by the District Court,” Stewart volunteered, but he nonetheless agreed that Black was correct in delineating how the D.C. language could be acceptably construed by means of a broadly inclusive definition of “health.” From that it should also follow, Stewart explained, “that when a physician has exercised his judgment in favor of performing an abortion, he has, by hypothesis, not violated the statute.” He added that hence “I think the question of whether the performance of an abortion is ‘necessary for the preservation of the mother’s life or health’ is entrusted under the statute exclusively to those licensed to practice medicine” and could not be second-guessed by a judge or jury. Hence any physician would be “wholly immune from being charged with the commission of a criminal offense under this law.”25
The Court’s decision was front-page news in major U.S. newspapers. Many reporters highlighted the subtle importance of Black’s broad definition of “health,” and most accounts portrayed the outcome as a 5 to 2 vote, with Justices Brennan and Marshall—who had joined Harlan’s dissent with regard to jurisdiction but did not indicate any views on even the vagueness question—being omitted from a simplified tally. Dr. Vuitch told reporters that he had performed eight procedures that very day of the decision, and Washington observers quickly concluded that given Black’s interpretation of “health,” the Court’s formal reversal of Gesell nonetheless would not allow for any new prosecutions of physicians in the District of Columbia. Indeed, it quite rapidly became clear that the decision would significantly increase rather than decrease abortion availability in the nation’s capital. While Norman Dorsen had at first been deeply disappointed over reports of the outcome, he was extremely surprised and then greatly pleased when Harriet Pilpel called to congratulate him on his role in helping generate the Court’s exceedingly helpful definition of “health.” Pilpel in a subsequent memo also emphasized that “the persuasiveness of the constitutional arguments based on Griswold is in no way diminished by the Vuitch” outcome and opinions.26
While Pilpel and most other knowledgeable attorneys counted Vuitch as an implicit victory rather than an ostensible defeat, in Texas word of the ruling was greeted with dismay by abortion repeal proponents. “As a practical matter, the Supreme Court decision has hurt our chances,” legislative sponsor Senator Tom Creighton told reporters. “People will just read that the Supreme Court has upheld an abortion law.” Repeal backers needed twenty-one votes to bring their bill up for Senate floor action and had only sixteen. Cosponsor Senator Don Kennard explained that “the overwhelming feeling in the Senate is for the bill philosophically, but politically it’s a different matter.” House sponsor Representative Sam Coats sounded a similar note: “Some members of the Legislature would love to have the Supreme Court decide this for us.”27
Given the backlog of additional abortion appeals and petitions that had accumulated at the Supreme Court over the previous eight months, the release of the Vuitch decision actually represented the onset of expanded Supreme Court action on the subject rather than any sort of conclusion. The justices had privately decided in late March that both of Jane Hodgson’s pretrial challenges to her Minnesota prosecution should be dismissed, but only several weeks after Vuitch was announced did they ratify their earlier conclusion and publicly issue the appropriate orders.28 Appeal papers in the Louisiana, Missouri, and Illinois cases had drawn relatively little attention or discussion within the Court,29 but after the justices’ January determination to postpone any consideration of either Roe v. Wade or Doe v. Bolton until Vuitch was decided, on April 22, the day after that decision, the Court by narrow but identical margins privately agreed to hear both of the cases. Five justices—Douglas, Harlan, Brennan, White, and Marshall—one more than the necessary minimum of four—voted to consider both Roe and Doe. The four other justices—Black, Stewart, Burger, and Blackmun—voted to affirm the lower courts’ denials of the plaintiffs’ requests for injunctive relief against the Texas and Georgia statutes and thus not review either those questions or the merits of the two declaratory judgments holding the abortion laws unconstitutional. Almost two weeks passed before those decisions were made public, but on May 3 the Court formally announced that sometime in the fall it would hear argument in both Roe v. Wade and Doe v. Bolton.30
News of the Court’s action stimulated an immediate burst of activity on the part of abortion litigators. Roy Lucas immediately circulated two memos encouraging the preparation of significant amicus briefs in support of the plaintiffs, and he formally asked Margie Hames for permission to prepare a medically oriented amicus brief in Doe which hopefully both the American Medical Association and the American College of Obstetricians and Gynecologists might decide to endorse. Lucas went to some pains to underscore how unimpressive the amicus participation in Vuitch had been, and while Harriet Pilpel told colleagues she believed there was “an excellent chance” the Supreme Court would void the Texas law on either vagueness and/or privacy grounds, Lucas emphasized that “the vote will be close” and that a defeat would set back the abortion movement by “at least a decade.” Privately, Pilpel worried that the Georgia reform statute at issue in Doe might be upheld even if the Texas law was not, and in Austin, where the repeal bill was now clearly not going to win legislative approval, the young Texas activists were far less sanguine than Pilpel. “I am not optimistic about the Supreme Court,” Victoria Foe wrote Dallas’s Ginny Whitehill. “I believe that this court will somehow continue to hand down a ‘no decision’ and to not rule on the substantive issue of privacy.”31
Both Lucas and Margie Hames successfully asked the Court for routine extensions of the deadlines on which their initial briefs would be due until August 1, and Lucas renewed a suggestion he had first broached to Sarah Weddington more than a month earlier: since both Weddington and her husband Ron, who had spent the last eight months living and working in Fort Worth, where Sarah had become an assistant city attorney, ardently wanted to move back to Austin and open a private practice, Sarah could as a halftime responsibility open a “southwestern office” of Lucas’s Madison Institute and do some of the work on Roe in Austin under that rubric. Linda Coffee, due to her law firm’s commitments, had far greater constraints on her available time than did Sarah, and Linda was already referring legal inquiries about Roe to Lucas, the “lead counsel.” By late May, when Lucas consulted with Weddington during a quick trip to Texas for a speaking appearance in Galveston, the “southwestern office” arrangement was set, and Lucas was beginning to worry about how to raise the necessary funds for Roe’s upcoming printing bills. Lucas wanted a significant portion of the money to come from Texas, and he hoped to persuade Dr. Hallford, who had already given a hundred dollars to help Ginny Whitehill’s spring legislative efforts, that his ongoing participation in Roe merited a serious contribution toward the appellate expenses.32
Within two weeks of the Court’s announcement that it would hear Roe and Doe, Harriet Pilpel invited many of the country’s principal abortion case activists to a New York dinner meeting on the first weekend in June—when many of them would be in town for another abortion-related conference—to discuss the Texas and Georgia cases and particularly the amicus briefs that ought to be prepared. Many of the attendees—Pilpel and her colleagues Nancy Wechsler and Jane Zuckerman, Lucas, Norman Dorsen, Cyril Means, ASA’s Jimmye Kimmey, and the ACLU’s Mel Wulf—were from New York to begin with, but Margie Hames and Judy Bourne both came from Atlanta and Norma Zarky was in town from California. Dorsen stressed that the cases’ prospects were “uncertain” because while Griswold “can be extended” to cover abortion, it “need not be,” and Lucas, no doubt with his earlier rebuff by Margie Hames still clearly in mind, emphasized how regrettable it was that Doe’s crucial but as yet unsuccessful challenge to the Georgia statute’s hospitalization requirement was going forward without any extensive trial court evidentiary record having been developed. Data on New York’s now almost one-year-old experience with nonhospital procedures might be a potentially persuasive substitute if it was featured prominently enough in the Doe briefs, Lucas advised.
Some of the most important aspects of the New York meeting, however, took place not in the group discussion but in more private conversations, and one particularly significant interchange occurred when Cyril Means went out of his way to tell Margie Hames that any involvement by Roy Lucas in Doe v. Bolton would represent a great danger to her prospects for success in the Supreme Court. The origins of Means’s intense although often-concealed animus toward Lucas dated back to the much-younger lawyer’s initial 1968 appearance on the New York abortion scene, when Pilpel and others had been so taken with Lucas’s Griswold-style privacy analysis of how abortion laws could be constitutionally challenged. In part Means’s enmity was fueled by his zealous preference for a historically oriented argument that once-valid nineteenth-century antiabortion statutes intended to protect women from a then-dangerous procedure had become obsolete and thus invalid as medical progress had made early-term abortion safer than actual childbirth. In 1968 Means had futilely attempted to dismiss the entire utility of any rights-based litigation strategy, an approach which many participants and observers understandably believed Lucas personified, especially after Linda Greenhouse’s prominent 1970 New York Times Magazine profile of the abortion rights struggle. Means’s hostility had been fortified when Larry Lader had broken with Lucas over the latter’s remunerative but admittedly controversial representation of for-profit commercial referral agencies, and it had been even further reinforced by the advent of Joe Nellis’s fervent antipathy toward Lucas in the wake of their battle over who would argue United States v. Vuitch.
Lucas’s audacious style—as Hames herself had personally experienced nine months earlier—sometimes helped create receptive listeners for Means’s talebearing complaints. To Hames, Means explained that Lucas’s previous attempt to move in on Doe v. Bolton was by no means unique, and he recounted the entire ugly contretemps between Nellis and Lucas over Vuitch. Means fortified his account with a dramatic but at best fourthhand story of how the Vuitch flurry of then withdrawn motions had left one or more justices “hopping mad” at Lucas’s impertinence. Means and others had assiduously monitored how Lucas had not yet applied for formal admission to the Supreme Court bar, and Means told Hames how he and Nellis imagined that the Court might very well reject what otherwise would be a customarily routine application because of Lucas’s conduct in Vuitch.
Hames was learning more than she wanted to know about New York’s petty rivalries, but Means’s assertion that the justices would look askance at any case in which Lucas was involved was a claim she could not afford to dismiss, even if she otherwise had been inclined to. The current plan, which Lucas had initiated four weeks earlier and which the dinner discussion had ratified, was that Lucas would prepare the most important, medically oriented amicus brief in Doe as well as the primary brief in Roe. Unlike Means, Hames knew from Lucas’s earlier comments that Sarah Weddington was now a Madison Institute employee and that Lucas’s involvement in the Texas case of course only postdated the panel decision, but the seriousness of Means’s claim about the justices’ feelings led her to raise the subject of Vuitch with Lucas later that same day. “He played dumb at first,” Hames recounted in a memo she dictated for her own records a day later, but then Lucas fessed up and related his side of the entire story. “He characterized Nellis as a Mafia type lawyer and stated he had had trouble with him on the Wisconsin case also.… He claimed that Nellis had ‘extorted’ about $100,000 from Dr. Vuitch last year and the Doctor was getting tired of it.” Lucas additionally explained that he had indeed just applied for formal admission to the Supreme Court bar, with New York University’s Robert McKay and Oregon Senator Robert Packwood as his official sponsors, and that the clerk’s office had assured him that there would be no problem. Hames declined to identify Means when Lucas asked about the source for her concerns, and the discussion ended. ASA’s Jimmye Kimmey took charge of following up on the participants’ informal agreements as to who would be responsible for which amicus briefs, and while some initial commitments—such as one by Means to prepare a “Catholic brief” that could be signed by other lawyers—soon fell by the wayside, others did move forward. The AMA had already declined to support any medical amicus brief, but Lucas would indeed prepare one for Doe and New York attorney Carol Ryan would oversee a much more modest one to accompany Lucas’s primary brief in Roe. Norman Dorsen had explained that given the ACLU’s formal sponsorship of Doe, the organization should not file an amicus statement in Roe, but Pilpel and her colleagues would prepare major submissions on behalf of Planned Parenthood and Norma Zarky would take charge of a brief to be filed on behalf of such women’s groups as the American Association of University Women, the Young Women’s Christian Association, and the National Organization for Women. Zarky and Hames agreed to closely coordinate their drafting, for as Hames explained to Zarky after citing some of the justices’ comments at the Vuitch hearing, “I do not believe that this Supreme Court will recognize the right to control one’s own body.”33
Few promising legislative developments were occurring anywhere in the country. The antiabortion effort to revoke New York’s 1970 repeal law had finally ground to a halt, but Governor Rockefeller had curtailed most state Medicaid payments for poor women’s abortions. New York City authorities, fearful of the financial impact on municipal hospitals, had filed suit against the new policy in state court, and in mid-May a trial judge voided the new policy. Holding that Griswold encompassed “the right to determine when and whether to have children,” and additionally citing Belous and Babbitz, Justice Samuel A. Spiegel ruled that “Since the right to decide not to have a child has been held to be a fundamental one protected under the Ninth Amendment, the State has an obligation to provide the indigent with adequate means to exercise that right.” Six weeks later an appellate court affirmed that ruling on the first anniversary of the New York repeal statute. That very same day, July 1, a newly passed state law prohibiting all for-profit abortion referral services also took effect. Enthusiastically supported by most abortion rights proponents, the measure was a direct response to what many observers felt was widespread and unconscionable profiteering. Roy Lucas, who was continuing to take significant flak over his representation of such operators, unsuccessfully sought a federal court order against the new law on First Amendment grounds, and some weeks later a three-judge panel expressly affirmed the statute’s validity.34
Antiabortion forces continued to maintain a high-visibility profile, especially in New York, and early in July Boston Archbishop Humberto S. Medeiros told a Sunday audience at New York’s St. Patrick’s Cathedral that the widespread availability of abortion in that city should be met with what he termed “vengeance.” New York City’s most intrepid Baptist minister, Clergy Consultation Service founder Howard Moody, told his nationwide network of abortion rights activists that a state-by-state survey of legislative prospects made it very clear “that the courts are the only real hope for change.” Additional repeal bills had gone down to defeat in Illinois, Maine, Ohio, and North Dakota, and prospects now looked bleak even in Michigan, which repeal proponents had once counted as perhaps their best prospect for a 1971 victory. Both there and in North Dakota, local activists were beginning to organize for 1972 statewide popular-vote referenda of just the same sort that had proved so successful in Washington state in 1970, but for most repeal supporters, Howard Moody’s conclusion was indeed the clear lesson of the first six months of 1971.35
Even in the courts, however, newer cases were experiencing at best a spotty reception. The Connecticut women’s suit had been dismissed by an openly hostile Federal District Judge, T. Emmet Clarie, and Katie Roraback and her colleagues had appealed the action to the Second Circuit Court of Appeals. The earlier similar dismissal of the Kentucky case had been reversed by a Sixth Circuit appellate panel, but the Arizona suit was rejected by a three-judge panel that placed particular emphasis on the U.S. Supreme Court’s opinions earlier in the year cutting back on federal court authority to entertain challenges to state criminal statutes. The New Jersey, Colorado, and Oklahoma cases were undergoing prolonged if not interminable judicial consideration, and the appeals of the Ohio and South Dakota ones also appeared to be going nowhere fast.36
There were several new judicial bright spots, however. In Missouri, where a federal case had initially proved unsuccessful, a state court trial judge sustained a constitutional complaint against Missouri’s abortion law, but the decision was immediately appealed. In Florida, where a new federal suit was also about to run afoul of the early 1971 Supreme Court rulings, the highest state court, in a decision reversing a criminal abortion conviction, explicitly declared that the state’s abortion law was unconstitutionally vague no matter how painstakingly a prosecutor might try to apply it against an accredited doctor. In California, where one court had already ruled that a female minor did not need her parents’ consent in order to obtain an abortion, one intermediate appellate panel upheld the constitutionality of the state’s 1967 reform statute while affirming a criminal abortion conviction of a licensed physician, but another appellate court voided significant portions of the 1967 law while reviewing a second such conviction. “We are impelled to conclude,” the second panel observed after citing Belous, Babbitz, and the Texas opinion in Roe, “that a woman has a constitutional right to terminate her pregnancy, subject only to reasonably imposed state restrictions designed to safeguard the health of the woman, and to protect the advanced fetus.” Both of the two divergent decisions, however, were appealed for more decisive review by the California Supreme Court.37
The most important legal undertakings of the 1971 summer, however, would be the preparation of the Supreme Court briefs for Roe and Doe. Margie Hames in Atlanta had principal responsibility for the primary brief in Doe, and while she had the benefit of additional input from ACLU southern office staff attorney Reber Boult, both Boult and in time Hames herself ended up spending a significant portion of the summer trying to help resolve racial disturbances that were wracking the west Georgia city of Columbus. A young ACLU intern from the University of Arkansas Law School, Pam Walker, had been assigned to assist Hames in preparing the brief, and while most of the other original Doe attorneys were now involved in name only, Tobi Schwartz from Atlanta Legal Aid had inherited the chief responsibility of coping with Doe’s lead plaintiff, Sandra Bensing. More than six months earlier, just weeks after Sandra had given birth to her “Doe” baby, Sandra’s husband Joel had outstripped all of his previous criminal conduct toward young children by kidnapping a six-year-old black girl and taking the child all the way from Atlanta to Oklahoma. The visual incongruity of the duo soon led to Joel’s apprehension and arrest, and in late January of 1971 Joel pled guilty and immediately began serving a twenty-year prison sentence. With Tobi’s assistance, Sandra renewed her 1969 petition for divorce, and in mid-May the divorce was finalized. Temporarily reduced to living with her mother and stepfather, Sandra yearned to regain custody of her first two children, and by the end of the summer Sandra had remarried in the hope that she now could attain a new stability in life.38
While Schwartz and Hames were contending with those difficulties attendant to Doe, challenges also existed for the principal participants in Roe. Roy Lucas had met Marsha and David King, although not Norma McCorvey, during his early summer trip to Texas, and shortly thereafter Marsha King sent Lucas a lengthy letter thanking him for his work on the case and detailing all of the medical and contraceptive misfortunes that had been encountered by “Mary and John Doe.” “We very much appreciate what you are doing,” and “We would like to help in any way that we can. I have written down all of the things that I could think of with regard to my problems with pregnancy,” and Marsha explained how in the wake of her second visit to Mexico City nine months earlier, she had “decided to take my chances with the pill” rather than practice abstinence. Marsha also described how she and Linda Coffee had been trying unsuccessfully for some time to locate Norma McCorvey. “I guess that we will have to comb the bars, and I can’t say that I am looking forward to that,” Marsha explained. She and David—as well as Marsha’s mother and grandmother—were planning to attend the Supreme Court argument in the fall, she said, and Marsha was also helping establish a Texas chapter of WEAL, the Women’s Equity Action League, a group committed to attacking economic and employment discrimination. The Austin women, who remained more focused upon their ongoing referral work than on the courtroom status of Roe, found themselves having to devote increasing attention to containing the sectarian activism of several Socialist Workers Party (SWP) members whose interest in abortion more and more seemed to follow a centrally rather than locally defined agenda. Early in the summer the SWP’s national leadership created a group called the Women’s National Abortion Coalition (and later the Women’s National Abortion Action Coalition, or WONAAC), and a mid-July conference in New York ratified plans for a Washington demonstration targeted at the Supreme Court just before the Roe and Doe oral arguments. Neither in Texas nor elsewhere, however, did the SWP initiatives interrupt the continuing work of earlier and more deeply committed activists.39
By late June it was becoming painfully clear that Roy Lucas’s Madison Institute had undertaken a significantly larger summer workload than it might be able to complete. Deadlines for the briefs in Roe and in Jane Hodgson’s criminal appeal to the Minnesota Supreme Court, as well as for the principal amicus brief in Doe and other items such as the jurisdictional statement for the Supreme Court appeal of the North Carolina case, Corkey v. Edwards, were all fast approaching. Most importantly, Lucas himself was actually the only full-fledged attorney at the Institute. Nick Danforth, a former colleague at the Twentieth Century Fund who was in charge of the Institute’s increasingly strained financial affairs, and a young college graduate who was about to enter Yale Law School, Brian Sullivan, were the only other full-time, nonclerical employees. Danforth had recruited a friend with two years at Yale law, David Tundermann, as a summer intern, and a first-year law student from the University of Cincinnati, Dan Schneider, had been similarly directed to Lucas by a professor who had worked at the Institute a year earlier. That trio of students found themselves doing much of the Institute’s substantive work, as Lucas was so overextended that he had to apologize to the Institute’s trustees—who had not met since 1969—for not having sent them any update on the Institute’s work in over a year.
One of the first people to realize how serious the summer overload might be was the Madison Institute’s newest employee, Sarah Weddington, who had already begun to turn her attention to the Roe appeal after she and Ron had returned to Austin from Fort Worth. By mid-June, however, Sarah was beginning to worry that Lucas and his New York aides were not making any significant headway on the Roe brief. Hoping that no more than a three or four week stay would be involved, Sarah decided with considerable reluctance that she herself had better spend part of the summer in New York.
Thanks to Lucas’s incidental affiliation with one of several abortion referral services, Sarah like Tundermann and Schneider had free yet extremely modest housing in a simple, clinic-connected building in the Gramercy Park area of Manhattan, only a fifteen-minute walk from the Institute’s significantly fancier quarters in a Greenwich Village town house where Lucas and his wife Uta lived upstairs and which had once been the home of the poet e.e. cummings. Lucas in early July sent the Supreme Court formal notification that he would be arguing Roe, but as Weddington learned upon her arrival in New York, the Institute’s most immediately pressing tasks were not the Roe or Doe briefs but the North Carolina and Hodgson submissions, both of which had even more urgent deadlines.
By mid-July, with Weddington pitching in and most staff members working twelve-hour days, the jurisdictional statement in Corkey had been submitted to the Supreme Court and work on the Hodgson brief was almost complete. Both documents quietly sought to emphasize that each of those cases presented questions which might well not be resolved by Roe or Doe. David Tundermann was overseeing most of the Doe amicus work, and the Institute staff was keeping Margie Hames regularly informed of their progress. On July 20 Lucas wrote to the clerk’s office at the Court to request an extension of the deadline date for the Roe brief from August 1 to August 17, and several days later Hames, who was coping with a serious back injury as well as the Columbus disorders, requested an identical extension. Both applications were soon granted, but even when Lucas’s letter was first dispatched, little more than the preparatory work of compiling Roe’s lower court record had actually been completed. Weddington contacted John Tolle of Henry Wade’s office to secure written confirmation that the Dallas District Attorney would, in the absence of any injunction, continue to enforce the Texas abortion law despite the three-judge court’s declaratory holding, and she also secured impressive affidavits from three prominent Texas medical school leaders attesting to the vagueness of the Texas statute and to how the Roe decision had in no way made legal abortions available in Texas. An elderly Boston friend of Danforth’s family, Thomas Cabot, contributed fifteen thousand dollars toward the summer’s rapidly mounting printing bills, and a wealthy San Antonio woman, Ruth McLean Bowers, whom Ginny Whitehill and Weddington had first met during the spring repeal effort in the Texas state legislature, sent the Institute a similar check for ten thousand dollars.40
The extension of the Roe and Doe deadlines until August 17 gave Weddington and the others some amount of breathing room, but when Ron Weddington arrived in New York in mid-July for a previously planned visit, Sarah quickly conscripted him as an additional contributor to the Roe brief. Like Sarah, Ron too had no other obligations until they actually could open an Austin law office, and Ron assumed responsibility for those portions of the Roe brief that would try to resuscitate the “Does’” standing and justify the involvement of Dr. Hallford, which appeared almost certainly foredoomed as a result of the earlier Supreme Court rulings.
Ron joined Sarah and the others at their no-rent lodgings as well as at the upscale offices, and while the youngest members of the Institute’s very young team—Ron at twenty-nine and Lucas at thirty were the two relative oldsters—found the summer enjoyable as well as memorable, by late July everyone was working extremely long hours. Sarah and Ron had asked a number of Austin friends, including Bea Vogel, Barbara Hines, and Glen Wilkerson, a former colleague of Sarah’s on the ABA ethics committee staff, for research assistance on specific state law items, and some of their efforts influenced small portions of the Roe brief. Lucas also had David Tundermann prepare a harshly critical review of Cyril Means’s work on the original nineteenth-century legislative motives for the enactment of antiabortion laws, and Tundermann’s devastatingly negative evaluation of Means’s research reinforced Lucas’s already strong predisposition to include hardly a single citation to Means’s historical analysis in either his Roe or Doe briefs.
Despite Margie Hames’s pronounced ambivalence, Lucas had decided that one way to repair Doe’s lack of any evidentiary record with regard to the Georgia reform statute’s hospital requirement, which the Atlanta panel had upheld, was to append to the Doe amicus brief a supplementary appendix of more than four dozen prior court rulings and medical journal papers that all-told came to an imposing 477 pages, far larger than the brief itself. Lucas included former Justice Tom Clark’s law review essay as well as medical studies by supportive doctors such as Bob Hall and Christopher Tietze, but Cyril Means’s 1968 historical article was one of the few arguably relevant items which was not included in the otherwise comprehensive collection.41
Lucas’s many obligations had often kept him out of town or otherwise away from the Institute’s offices for much of the summer, but by early August, he was working until the early hours of each morning drafting, polishing and assembling different portions of the Doe and Roe briefs. Early Tuesday morning, August 10, one week before their deadline, Lucas left a daybreak memo for Sarah, a message that was as revealing as it was instructive, for it was a note to an employee, not a colleague: “It is 6 o’clock and the sun is coming up, but the Doe brief is complete. Today I expect you to take over to ensure that it is proofed and printed to perfection.” A variety of additional directives—“Make certain … be certain … Correct Table I-2”—followed, and the memo ended with a curt and brusque admonition: “Do not make any proofreading or administrative mistakes.”42
Four days later the Doe amicus brief was filed in Washington, followed within a week by the Roe brief, Margie Hames’s brief in Doe, and a half-dozen other supportive amicus submissions. Lucas’s Doe brief was notable less for its content than for its impressive list of signers, which even drew news attention in the New York Times. The three leading organizational endorsers—the American College of Obstetricians and Gynecologists (ACOG), the American Medical Women’s Association, and the American Psychiatric Association—were joined by some 178 individually prominent medical leaders, including Alan Guttmacher and Hugh Savage plus Keith Russell, Ned Overstreet, and Jerry Kummer from California. Twenty-two individual signatories hailed from New York, but Minnesota—in a less-than-subtle effort to appeal to Justices Blackmun and Burger—topped all other states with a total of twenty-four, including Jane Hodgson and the Mayo Clinic’s Dr. Joseph H. Pratt.
The first two thirds of Lucas’s 145-page Roe brief—which also listed Sarah and Ron Weddington, Linda Coffee, Fred Bruner, Roy Merrill and Norman Dorsen as additional attorneys—was largely devoted to procedural matters and to emphasizing the breadth of medical support for legalized abortion. The constitutional privacy argument began only on page ninety-one, with a long quotation from retired Justice Clark’s law review essay. Lucas cited the Court’s 1923 decision in Meyer as well as Griswold in contending that the absence of any explicit constitutional enumeration of a privacy right “is no impediment to the existence of the right,” and he cited language from a well-known 1905 ruling, Jacobson v. Massachusetts, in arguing that “The right to seek and receive medical care for the protection of health and well-being is a fundamental personal liberty.” He reached beyond the constitutional frame of reference to remind the justices that “Certainly the members of this Court know from personal experience the emotional and financial expenditures parenthood demands,” and a relatively brief final section quickly dismissed the likely arguments that Texas might make in defense of its statute. Only a brief footnote on page 123, originally prepared by Ron Weddington, directly rebutted a common argument made by abortion opponents: “Section 1 of the Fourteenth Amendment … refers to ‘All persons born or naturalized in the United States.…’ There are no cases which hold that fetuses are protected by the Fourteenth Amendment.”
Of the seven other favorable amicus briefs submitted in August, the two most significant were those prepared by Harriet Pilpel and her colleagues on behalf of PPFA and one by Nancy Stearns, who had helped file both the 1969 Abramowicz case in New York and one of the ensuing companion suits in New Jersey, on behalf of several small women’s groups plus WONAAC. Pilpel and her two coworkers, Nancy Wechsler and Jane Zuckerman, sounded much the same note as Lucas, stressing that “the right to abortion must be viewed as a corollary of the right to control fertility which was recognized in Griswold” and stating that there is a “fundamental constitutional right under the Ninth and Fourteenth Amendments to choose whether or not to bear a child.” Like Lucas, the PPFA brief also quoted from former Justice Clark’s article to support the contention that “the right of a woman to choose whether or not to bear a child is an aspect of her right to privacy and liberty.” Pilpel emphasized the linkage to Griswold again and again, however, asserting that from “the right to practice contraception and thus control fertility” flowed “the right to control conception.… The right to contraception implicitly includes the right to choose whether or not to become a parent.”
Nancy Stearns’s impressive submission focused more upon the realities of pregnancy than the PPFA brief’s invocation of precedent. “Carrying, giving birth to, and raising an unwanted child can be one of the most painful and long-lasting punishments that a person can endure,” Stearns explained, and “statutes which condemn women to share their bodies with another organism against their will” should be declared unconstitutional. A somewhat similar point was made in the far more modest amicus brief filed only in Roe by Carol Ryan on behalf of the exact same impressive list of signers whose names appeared on Lucas’s medical brief in Doe: “The freedom to be the master of her own body, and thus her own fate, is as fundamental a right as a woman can possess.”43
Roy Lucas sent Cyril Means copies of the Roe and Doe briefs, in which Means’s work received only a single, unindexed citation, as soon as they arrived from the printer, accompanied by a seemingly incongruous cover letter saying that “I was able to utilize your work a great deal, and … I regard the contribution of your article highly.” Lucas also derisively told Means that “As you can see, I copied everything from the writings of Joseph Nellis and Harriet Pilpel (I mean, Miss Zuckerman), who have unwittingly allowed their drafts to slip into my hands.” Roy and his wife Uta, whose relationship had recently become increasingly strained, left New York for an almost month-long trip to Germany, Italy, and Greece almost as soon as the briefs were filed, and Cyril Means invited both Margie Hames and Sarah and Ron Weddington to his summer home in Gloucester, Massachusetts, for an end-of-the-summer vacation. Hames had to decline, but told Means of her disagreements with Lucas over the Doe amicus brief and Lucas’s huge supplementary appendix, and Means replied in a letter which again starkly reflected his spiteful attitude toward his perceived rival. “I was sorry to learn of all your tribulations this summer,” and “I could not help chuckling at the thought of Spurgeon LeRoy Lucas, Jr., affecting to remain ‘above it all,’” Means said. “Your hair would stand on end if you knew the telephone calls that have been made to me here by highly placed men he has been harassing in his now desperate quest for funds.”
Just a few days later Sarah and Ron Weddington took the train from New York up to Massachusetts for a three-day visit with Means before they returned to Austin. Sarah had had only passing contacts with Means in New York, but had found “he was a pleasant person” and had been particularly impressed that “he took time to talk to me” and treated her as a colleague, not an employee. She had been delighted at Means’s invitation that she and Ron visit him in Gloucester, and while little of the visit was ostensibly devoted to abortion litigation issues, it did provide Sarah and Ron with their first extensive exposure to someone within the New York abortion world who had a thoroughgoingly critical attitude toward Lucas both personally and professionally.44
The week after the Weddingtons’ visit to Gloucester, Sarah on behalf of herself and the vacationing Lucas sent a formal letter to the clerk’s office at the Supreme Court requesting additional oral argument time in Roe beyond the thirty minutes normally allotted each side. Their request, Weddington explained, came “primarily because of the two unusually important and complex issues involved” in Roe: first the generic question of “the propriety of injunctive relief against the enforcement of state criminal statutes” to which the Court had devoted so much attention in its spring decisions, and second the constitutional claim which “squarely presents the question of the application of the right of privacy to the abortion issue,” a subject which was of “vital importance to countless women and their families.” Those “issues are particularly important and complex,” and she reminded the Court that a full hour initially had been allocated to each side in Vuitch. The letter closed by implicitly making a second request as well: “In view of the complexities of the case and the necessity that each aspect of the case be consummately presented, Mr. Lucas and I desire to share the responsibilities of oral argument. We respectfully request the Court to grant additional time for the oral argument.”
Upon his return from Europe, Lucas indicated in a letter to the imprisoned Nathan Rappaport, better known as the authorial “Dr. X” of The Abortionist, that “I will be arguing Roe with a colleague,” presuming that the Court assented. Lucas’s most immediate concern, however, just as Cyril Means had indicated to Margie Hames, was how to generate sufficient funds to keep the Madison Institute going in the absence of any ongoing support from either Morris Dees or Joseph Sunnen. Lucas was receiving a significant personal income from his ongoing representation of Milan Vuitch in all three Washington-area jurisdictions, and in mid-September he also collected the first half of a twenty-thousand-dollar fee for filing suit against the Kansas reform statute, which restricted therapeutic abortions to large, specially accredited hospitals, on behalf of a Kansas City doctor, Dr. Lynn Weller, who was doing a booming business in a small, black-owned facility.45
Lucas was gradually becoming convinced, however, that many of the Madison Institute’s fund-raising difficulties were due to the continuing dissemination of Joe Nellis’s and Cyril Means’s comments about him and his actions in Vuitch. In mid-September, just after his return from Europe, Lucas heard talk of a new strand of complaints, and in response he sent Margie Hames a firm but polite letter complaining as to how he recently had been apprised that “Someone involved in the Doe case apparently told several foundations that the ACOG brief was not wanted by the Doe counsel(s), and that it would be superfluous to file such a brief. This unkind commentary made it quite difficult to raise funds to cover the cost of the brief, and I find it difficult to believe that anyone could have made such a statement.” Hames waited a week before responding, but when she did, her four-page letter of reply laid out all of her accumulated anger reaching back to Lucas’s first attempt to move in on Doe thirteen months earlier. She began by recalling that in the earliest stages of Doe, ACLU legal director Mel Wulf had recommended that she and her colleagues contact Lucas for assistance. When they did so,
We received a packet of reprints of medical articles and your law review article and a bill for $25.00. This did not get us off to a very good start and needless to say did not endear volunteer counsel to you. The next thing we heard from you was after the decision in our case; you called and offered to take over the appeal to the Supreme Court. I advised you that [the] ACLU would pursue the case. You then wrote me a very lengthy dissertation on your expertise and our lack of it. We were very foolish, according to you, to reject your help. We did not turn down your help; we did say you could not take over the case and argue it.
Hames went on to complain about how Lucas had begun to advertise his preparation of the Doe amicus brief even before the New York attorneys’ meeting had approved that assignment with Hames ambivalently acquiescing. She had felt “that you should stick to the Texas case, which you had ‘taken over’ by then, and stay out of our case,” but “there was no real alternative” to Lucas doing the medical brief. She had worried that Lucas was taking on more work than he could complete, and she detailed how Nellis’s accusation that Lucas had tried to “take over” Vuitch seemed to parallel the way in which he had come after Doe. Those concerns, she asserted, had been reinforced by phone calls and queries from other abortion activists, and “the questions themselves were indicative that many people mistrusted you.”
With regard to Lucas’s specific complaint, “I never told anyone we did not want the ACOG brief,” Hames stated, but when a foundation lawyer had called to ask her about Nellis’s allegations and Lucas’s earlier insulting letter to her, Hames had refused to provide any copies but had conceded her unhappiness about Lucas’s handling of the amicus brief. Lucas’s basic problem, she declared, was that “you are immature, somewhat irresponsible, and a super ego. I also feel you are very devoted to this movement and have accomplished many good things. Why don’t you grow up?” Hames’s most serious worry was the “forbidding” size of Lucas’s supplementary appendix. “It is so overdone the entire thing may turn the Court off and they may choose to ignore it. Thus in this way your brief has jeopardized our case.” Hames finally concluded her lambasting by telling Lucas that with regard to his fund-raising difficulties, “I refuse to accept responsibility for your problems. You should quit trying to blame someone else.”46
The increasingly mean-spirited relations among the abortion lawyers fortunately remained an entirely private problem, but a potentially more public difficulty was brewing for Lucas within the organizational world of NARAL. Three weeks before the group’s early October annual meeting, NARAL’s nominating committee circulated a statement to the entire membership explaining that Lucas’s name was being withdrawn from the list of nominees for NARAL’s board of directors because of his courtroom representation of the for-profit abortion referral services. Lucas prepared a statement defending the propriety of his legal work for the commercial agencies, and various recipients of the NARAL circular began to inquire as to what was going on. John Cowles, the publisher of the Minneapolis Star and Tribune newspapers and a financial contributor to Jane Hodgson’s legal defense fund as well as to NARAL, wondered whether the controversy would “adversely affect the effectiveness” of Lucas’s upcoming representation of Hodgson before the Minnesota Supreme Court. Hodgson’s supporters had already paid Lucas over thirty-two thousand dollars for his work, and local attorneys vouched for the “excellent” quality of the brief Lucas had submitted to the Minnesota court on her behalf while Minnesota activists knowledgeable about internal NARAL politics reassured Cowles and others that the dispute had more to do with personalities than anything else. “It was evident from the discussion,” the minutes of one fifteen-person Minneapolis-St. Paul meeting recorded, “that several people present felt that Mr. Larry Lader,” the NARAL chairman, “was prejudiced against Mr. Lucas.”
Roy Lucas, who knew that Lader was a close friend of Cyril Means, felt exactly the same, and without using Lader’s name nonetheless said just as much in a memorandum asserting that he would be too busy to contest the action in person at the annual meeting. NARAL, he brashly but accurately asserted, “has contributed almost nothing to the court cases” and its leadership—i.e., Lader—has “seemed only interested in holding press conferences to announce or pretend involvement in court cases wherein NARAL was not in fact at all involved, or to announce positions which carried no force.” During a year “of impasse in both courts and legislatures” and during which “the anti-abortion forces have greatly increased in strength,” NARAL had contributed relatively little, Lucas asserted in his dismissive rebuttal.47
In private, many activists agreed with some if not all of Lucas’s analysis. NARAL executive director Lee Gidding had remarked to Colorado’s Dick Lamm several weeks earlier that 1971 so far had witnessed only “an impressive series of losses throughout the country” and she added that “those of us on the inside know what a beating the opposition dealt us this year” in state after state. A New York Times story reviewing the results of state legislative sessions highlighted how not a single new abortion statute had been approved in 1971, and what a particularly stark contrast that was from the dramatic events of 1970. NARAL activists such as Gidding and Kansas’s Biddy Hurlbut, an outspoken supporter of Lucas’s, also traded fears that perhaps both Lucas and Sarah Weddington were privately much more pessimistic about the chances that the Supreme Court would actually address the basic constitutional issues of abortion in Roe and Doe than they wanted openly to admit.
Then, within one six-day period in mid-September, just two weeks before the beginning of the Supreme Court’s 1971 term, first Hugo Black and then John Harlan suddenly resigned from the Court because of rapidly deteriorating health. Black died just one week after stepping down, and the two departures transformed a nine-justice court into a seven-member bench to which conservative Republican President—and professed abortion opponent—Richard M. Nixon would now have the opportunity to nominate two new potential apostles. Abortion lawyers who had seen or heard of Black’s questioning of Joe Nellis at Vuitch had never counted the elderly Alabamian—and Griswold dissenter—as a potential supporter, but John Harlan had seemed a winnable vote. The possibility that Richard Nixon would nominate even one justice who might be willing to extend Griswold to abortion seemed close to nonexistent.
NARAL’s annual meeting, however, which convened in Washington the day before the Supreme Court began its 1971 term, featured far more discussion of Roy Lucas than of the forthcoming changes at the high court. Former ASA executive director Ruth Smith led an effort to revive Lucas’s consideration for the NARAL board, and overcame opposition from both Cyril Means and Larry Lader to win agreement that a mail ballot on Lucas’s status would be distributed to the entire national membership. Lucas portrayed that outcome as a signal victory, and told his Minnesota supporters that the battle was really “an effort by a handful” of New Yorkers “to harass me because they feel left out of the national litigation program. Quite frankly, I have ignored this clique” and what Lucas viewed as their false efforts to claim undue credit and public attention. In response, “the New York clique, having nothing else to do, and obsessed with malicious fantasies, has set out to malign my reputation and interfere with my work,” especially with regard to the Madison Institute’s fund-raising efforts. “My job is to be an advocate in court, not a businessman nor a politician,” Lucas professed. “In matters of business and politics I have little competence.”
Larry Lader’s public focus at the NARAL meeting was on how abortion availability, now relatively good on both coasts thanks to the California situation as well as New York and D.C., had to be expanded in the Midwest, where only Dr. Kennan’s clinic in Madison and Dr. Weller’s operation in Kansas City offered readily available service. Lader announced that NARAL’s top priority for 1972 would be to achieve repeal in Michigan, and in furtherance of that end longtime Detroit provider Dr. Ed Keemer was introduced to the press as a physician who now would openly perform “mental health” abortions for a significant number of women. Several weeks later, in preparation for the referendum on Lucas, both Lucas and his opponents mailed statements to the entire NARAL membership, with Lucas decrying “pointless and destructive infighting” and defending his representation of the for-profit referral services. “The existence of commercial agencies is obvious proof that they are needed and that they often provide cheaper abortions than non-profit groups,” Lucas claimed. His adversaries’ rebuttal noted how the federal courts had upheld New York state’s ban on such agencies and sought to claim the moral high ground: “If we are to stand behind free abortion referrals, we cannot have any board member making high personal fees from a defense of commercial referrals.” Privately, however, many participants acknowledged that the vote was as much a referendum on Roy Lucas as on commercial referral services. North Carolina’s Art Jones, the 1967 reform law sponsor who had become first a repealer and then a 1970 plaintiff in the Corkey case against his own statute, confidentially notified Lee Gidding that he would resign from NARAL’s board should the vote go against Lucas. “I feel it would be hard to find a person who has done more for repeal in this country than Roy.”48
Sarah Weddington traveled from Austin to Washington to attend the NARAL meeting and took the opportunity to attend the opening day of the Supreme Court’s term and get an eyewitness look at the way in which oral arguments were conducted. She too, like Lucas a few months earlier, had now been formally admitted to the Court’s bar, and during her visit she had a chance to chat with one of the ranking officials in the clerk’s office, who told her that Roe and Doe might well be postponed until the Court was back up to full strength and that her and Lucas’s motion for additional oral argument time was unlikely to be approved. Sarah and Ron’s effort to launch their Austin law practice was getting off to an extremely slow and unremunerative start, and while the Madison Institute was now so bereft of funds that Sarah’s ostensible halftime job was a monetary fiction, the resulting state of affairs had left her with time for a mid-September visit to Dallas to see Marsha King and meet Norma McCorvey. Marsha had just been prominently featured in the Dallas press—“a diminutive brunette,” the Dallas Morning News called her—when the WEAL chapter of which she was president had filed sex discrimination complaints with the U.S. Treasury Department charging that a significant number of Texas banks—including two of Dallas’s largest, Republic National Bank and First National Bank—had absolutely no female directors or officers. Sarah shared with Marsha, as with Ruth Bowers in San Antonio and Ginny Whitehill, her growing doubts about Roy Lucas and the Madison Institute. No one was at all certain about Roe’s prospects in the Supreme Court, and the upcoming nomination and likely Senate confirmation of two more Nixon-selected jurists was even further discouraging.49
In late September the Utah declaratory judgment case was tossed out by a federal three-judge panel,50 and then, on October 12, with only Justices Brennan and Douglas dissenting, the Supreme Court refused to hear Lucas’s appeal of Dr. Vuitch’s 1969 abortion conviction in Maryland, which the state’s highest court had affirmed eleven months earlier. Lucas immediately filed a habeas corpus petition on Vuitch’s behalf in federal district court in Maryland, thus blocking any effort by the state to move toward actual imposition of Vuitch’s earlier one-year jail sentence and five-thousand-dollar fine. Vuitch himself told reporters that abortion was “a private matter between the physician and the patient,” and confidently declared that “I may have lost the battle, but I’m going to win the war.”51
The same day that the high court dismissed Vuitch’s appeal, the justices denied Weddington and Lucas’s request for additional argument time in Roe.52 A few days later, both Dorothy Beasley on behalf of Georgia and Jay Floyd on behalf on Texas, finally filed their Supreme Court briefs after having obtained deadline extensions just as Lucas and Hames had done during the summer. Beasley, who had argued—and lost—her first Supreme Court case, involving a Georgia motor vehicle statute, seven months earlier against Elizabeth Rindskopf, one of the initial Doe attorneys, had hoped for an even longer extension, for up until Justices Black and Harlan’s retirements, she had been scheduled to argue two major death penalty cases, Furman v. Georgia and Jackson v. Georgia, on October 12. The capital punishment cases were, along with Roe and Doe, the major public issue on the Court’s docket, but the diminution of the Court to seven members had quickly led to an order postponing that argument until such time as the court returned to full strength. That action had underlain the prognostication Sarah Weddington had been given that the abortion cases too would be held until Nixon’s nominees were chosen and confirmed, but it more importantly had allowed Dorothy Beasley somewhat more time to polish her seventy-nine-page Doe brief before submitting it on October 15.53
Dorothy Beasley’s solid but unremarkable submission was produced wholly in Atlanta, but the fifty-eight-page brief filed on behalf of Henry Wade and the state of Texas on October 19 had been composed in a somewhat more unusual way. Jay Floyd, the assistant attorney general who had had responsibility for Roe—as well as some fifty to sixty other cases—since the initial Dallas hearing, had started out with no particular feelings about abortion one way or the other, but by the time that the Dallas panel had rendered its decision, Floyd had become firmly convinced of the fetus’s right to life and resolutely antiabortion. As early as June of 1970 one of Floyd’s superiors in the attorney general’s office had made initial contact with a Washington-based lawyer for the National Right to Life Committee, Martin F. McKernan, Jr., and a year later, in July of 1971, as Floyd was about to get to work on Texas’s brief for the Supreme Court, McKernan traveled to Austin to meet with him and to recommend that Floyd include a significant amount of medical information concerning fetal development during pregnancy.
By early September, however, Floyd had not yet been able to get started on the Roe brief, but through McKernan’s good offices he had been introduced to two partners in a Chicago law firm, Dennis J. Horan and Jerome A. Frazel, Jr., who were planning to submit an amicus brief in defense of the Texas antiabortion statute of behalf of some 222 physicians and who had authored a similar submission in Vuitch. They graciously offered to assist Floyd in preparing the state’s brief, and on September 9 Frazel wrote Floyd to tell him that
We are just about ready to send you the two sections of your brief, which we discussed on the telephone. The doctor from Mayo Clinic, who we’ve been working with, has done a very comprehensive job on rebutting the claim that induced abortions are not a health hazard any longer to the mother, and we have sharpened up our scientific information concerning the nature of the unborn child. Hopefully we will have these things in such a form that if you have the room you could just insert them without any further work.
“Our plan,” Frazel went on, “still is to perhaps reproduce the sections as a separate amicus brief” on behalf of the physicians. “The material will be read in your brief, whereas it will just be part of the record in our amicus brief.” Six other antiabortion amicus briefs were also being prepared, and Frazel noted that the likelihood was that “this avalanche of amici briefs will probably go for naught since they will not be able to read them all.”
One week after that letter, Frazel’s senior partner, Dennis Horan, followed through on his colleague’s promise and sent Floyd an initial package:
I am enclosing the first part of the medical [sic] for inclusion in the Texas brief. The medical [sic] has been brought up-to-date and revised from what you have previously seen in our amicus brief in U.S. v. Vuitch.
We have written this medical [sic] referring directly to the Texas case so that it can be, if you desire, given directly to your printer without revision. However, you may want to draft your own beginning and conclusion.
“The second part of the medical [sic],” Horan explained, “concerning medical complications of abortion is in its final revision and will be forwarded to you shortly.” If Floyd had any questions about what they were sending him, Horan added, “please call me collect.” Five days later, Horan mailed Floyd “the second part of the medical [sic]” as well. “Once again,” he said, “it has been tailored to fit the Texas situation, but feel free to make whatever changes you feel are necessary,” and do “call me collect” if any problems appeared. Horan additionally sent Floyd eight pages from a lengthy antiabortion book that he felt “substantially repudiated” Cyril Means’s historical work, and advised Floyd that in light of Justices Black and Harlan’s resignations, “the presently sitting Justices would probably divide 4 to 3 against the Texas statute.” Hence, “We are wondering if perhaps you ought to consider getting another extension of time in order to give President Nixon time to fill those two appointments in the hope that these two successors would support the Texas statute.”54
Given the amount of material sent from Chicago to Austin, it was perhaps as unsurprising as it was notable that more than forty percent of Texas’s brief in Roe v. Wade—approximately twenty-five of its fifty-eight pages—directly duplicated material that was also submitted to the Roe Court in the amicus brief filed by attorneys Horan and Frazel. While the overlap was most visible with regard to how the two briefs both used ten identical photographs of fetal development which the Chicagoans had sent to Floyd, the lengthier seventy-nine-page amicus brief went on to offer even more detail about fetal growth than Floyd’s heavily illustrated submission. For better or worse, however, the first half of Texas’s brief was an original composition, and it straightforwardly argued that “the fetus is a human being” and “the right to life of the unborn child is superior to the right of privacy of the mother.” Texas’s presentation was marred by a number of glaring typographical errors—well-known Supreme Court decisions such as Flast v. Cohen and Barrows v. Jackson repeatedly became “Flask” and “Burrows”—but Floyd took on the Griswold analogy with forthrightness if not with perfect grammar: “Prevention of abortion does not entail … state interference with the right of marital intercourse, nor does enforcement of the statute requiring [sic] invasions of the conjugal bedroom.” The most impressive of the six amicus filings, by Alfred L. Scanlan of Washington’s Shea and Gardner on behalf of the National Right to Life Committee, made the same point more succinctly: “The Texas and Georgia abortion statutes do not affect the sexual relationships of husband and wife.”55
On October 21, President Nixon went on nationwide television to announce his two nominees for the Black and Harlan vacancies on the Supreme Court: sixty-four-year-old Lewis F. Powell, Jr., a politically moderate Virginian who had once served as president of the American Bar Association, and forty-seven-year-old William H. Rehnquist, an extremely conservative assistant attorney general who had served as a law clerk for Justice Robert H. Jackson two decades earlier. Nixon had publicly broached several far less qualified candidates prior to actually naming Powell and Rehnquist, and Powell’s selection was greeted with considerable praise, both because of his establishment credentials as a private practitioner and because his opposition to segregation while serving as chairman of the Richmond Public School Board and his involvement with the National Legal Aid and Defender Society made clear that he was no one’s predictable conservative. Self-effacing and oftentimes almost shy, Powell drew almost no opposition, whereas Rehnquist, who had assisted in framing many of the Nixon administration’s most controversial “law and order” policy proposals, was undeniably well to the right of any sitting justice. Joe Nellis sent Cyril Means a deeply pessimistic letter, advising that with regard to Powell and Rehnquist “I know of nothing in their backgrounds that would give any supporter of abortion law repeal or reform any comfort or hope for a favorable judicial solution.” Justices Douglas and Stewart, Nellis said, were probably the only supportive members of the high court, and “I have the feeling that favorable court rulings turned the corner in 1970 and that the going will be heavy and downhill from here on in most jurisdictions, and particularly in the Supreme Court.”56
While both sides in the abortion cases seemed fearful of judicial setbacks, in late October the New York Times gave front-page coverage to how the results of the first major national public opinion poll in several years to ask Americans about their views on abortion had revealed “a dramatic change in public attitudes,” with a full 50 percent now saying that during the early stages of pregnancy, the choice should be left to a woman in consultation with her doctor.57 That news did little to lift the spirits of abortion litigators who were wondering whether the as yet unscheduled arguments in Roe and Doe would indeed be postponed until Senate confirmation of the Powell and Rehnquist nominations had returned the Court to full strength. Roy Lucas wrote Sarah Weddington to express new concern that the Court “may be interested in these cases primarily for purposes of defining federal jurisdiction,” and then on November 2 the attorneys received additional bad news when the constitutionality of the Texas antiabortion law was expressly upheld in a decision affirming a Houston doctor’s 1969 conviction by the Texas Court of Criminal Appeals, the highest state forum for such cases. The Texas court ignored the Dallas federal panel’s 1970 ruling against the statute and instead cited Judge Campbell’s dissent in the Illinois federal case, Doe v. Scott, as support for its conclusion that the state had a compelling interest in protecting fetal life. Ginny Whitehill criticized the decision in the Dallas press, calling it “a step backward in the struggle for human dignity” and the “right to choose,” but antiabortion lawyers such as Al Scanlan notified Jay Floyd that the Texas court’s reaffirmation of the statute was powerful grounds for asserting that the now arguably immaterial Dallas decision in Roe failed to present a “substantial federal question” and hence should not even be reviewed by the Supreme Court.58
A concerned Sarah Weddington sent a copy of the Texas court’s opinion to Cyril Means along with a note describing how she had happened to meet a young new University of Texas law professor, Scott Powe, who had been one of Hugo Black’s 1970–1971 law clerks. “He felt it would be inappropriate for him to discuss the cases,” Weddington related, but he “did say ‘good luck’ in a way that silently added, ‘because you are going to need it.’” She was also worried, Weddington explained, about Austin rumors that a prominent Texas law professor with substantial Supreme Court experience, Charles Alan Wright, might argue Roe on behalf of the state rather than Jay Floyd. Privately, Weddington was more preoccupied with the issue of whether she and Lucas could split their side of the argument even though the motion for additional time had been rejected. “There is a Supreme Court Rule,” Weddington explained to Ginny Whitehill, “that allows two people to argue a case by special permission of the Court where several parties are involved, so I’m contemplating that, much as Roy isn’t going to like the idea.” In late October Weddington called Lucas to broach that possibility. “I just told Roy I was going to draft a request for special permission to submit—he didn’t say anything,” Weddington subsequently told Whitehill.
One week later, however, Lucas sent Sarah a long letter articulating why he and not she should of course argue Roe. He began by rebutting what he knew were Cyril Means’s various aspersions upon his courtroom track record. Means, Lucas said, has been “consorting too much with people like Joe Nellis and Larry Lader who, like him, would have much more of the limelight they so desperately need if I were not alive. It is pitiful that they cannot put aside their animosity against a ‘young upstart’ to work for the common goal.” He had also heard, Lucas said, “that Cyril has been trying to get you to persuade me to give up half of my time for the Roe argument. He should realize, however, how amateurish it looks to have a parade of different counsel getting up and down for argument.” In Roe, Lucas went on,
I have been working for a long time to prepare argument by keeping up with the developments in jurisdiction and on the merits, not to mention the fast-moving medical aspects of the question. There is no reason for multiple counsel, as I am certain you realize. It is enough of a burden for me to have to worry about the views of the nine different justices, the questions each might ask, the way to weave the argument into responses to questions, etc., without having to worry about what another counsel will say or how another counsel might respond to a difficult question.
Lucas’s conclusion pulled out almost all the stops:
It has taken me virtually years to read and absorb everything which might be relevant to the case, and it would be wasteful to not make full use of this experience. As I indicated before, you should be relatively well-prepared on all of the issues in the case in the event that I go down in an airplane accident, but every maxim of appellate advocacy demands that the case be presented by one attorney, and that the attorney be the most thoroughly prepared. This is particularly necessary when we know full well that the Doe case is in less than fully capable hands. While I like Margie Hames as a person, her inexperience in this area of litigation frightens me. It seems almost irresponsible for her to risk such an important issue by preparing so little.
If Cyril has been “working on you” as I have been told, I trust you will put the best interests of the cause over any personal desires in the matter and will straighten him out. It would be a serious mistake to divide the argument, and it is completely out of the question.59
On November 15, the clerk’s office at the Supreme Court notified the attorneys in both Roe and Doe that oral arguments in the cases had been scheduled for Monday, December 13, and asked for written confirmation of which lawyer would argue for each side. Roy Lucas promptly replied that in Roe “oral argument for appellants will be presented by Roy Lucas,” but two days later, just before word of the scheduling reached Texas, Marsha King visited Austin to attend a meeting and while there discussed the subject with Sarah Weddington. “Marsha told me she wanted me to do the oral argument, but I was still inclined to let Roy do it,” Weddington explained in a letter to Ginny Whitehill three days later. “Then everybody found out about the date having been set, and before I talked to her Marsha sent Roy a telegram saying they wanted me to do the oral argument.”
Marsha’s November 22 telegram was as unpleasant a shock as Roy Lucas had ever received. “David King had written a letter to me on behalf of Marsha and himself only a few weeks earlier, stating that he and Marsha were looking forward to hearing me argue and thanking me for the work I had done,” Lucas recalled eight months later. “Yet, when I called him in response to their telegram, I was accused of being a sexist for asking to talk to him, and Marsha denied that there had been any understanding other than that” Sarah would present the case. “That was less than the complete truth,” Lucas asserted in his subsequent rendition, for “I had the contrary in writing from them.”
Lucas’s November 23 phone conversation with Marsha had quickly turned unpleasant. Many of Marsha’s comments about why Sarah rather than Roy should present the argument echoed Cyril Means’s assertions about Lucas’s shortcomings to an amazing extent. Roy tried to convince Marsha that she should speak with any number of people who were familiar at firsthand with Lucas’s courtroom skills, such as Jane Hodgson, before firmly making up her mind, and later that day Sarah sent Ginny Whitehill an update explaining that the outcome was still unclear. “I have very conflicting emotions about it,” Sarah confessed. “I would really like to do the oral argument and I am tremendously pleased that Marsha wants me to do it so much—but I really dislike the hassle. We’ll just have to see what works out. It appears I may do it. My stomach is already in knots.”
The following day, the Wednesday before Thanksgiving, Marsha and David King met with Linda Coffee in Dallas to discuss their choice. Like Marsha, Linda had by now heard the fourth or fifthhand story, just like Cyril Means had told Margie Hames six months earlier, that the justices themselves actively disliked Lucas because of his Vuitch behavior and that any case for which he spoke might thereby suffer. Marsha had touched base with Norma McCorvey as well, and Linda concurred with Marsha’s insistence that it would be better for all concerned if Sarah rather than Lucas argued their case. Linda suggested that the best way to implement their decision would be for her to send a formal letter of notification to the Supreme Court, and later that day she addressed just such a missive to Court clerk E. Robert Seaver. “I am the general counsel for Norma McCorvey, Marsha King, and David King, who are Appellants Jane Roe, Mary Doe, and John Doe respectively,” Linda explained. “In such capacity I wish to inform the Court that each of my clients requests that Sarah Weddington present the oral argument.” She indicated that she was sending copies of the letter to Lucas as well as to Fred Bruner and Roy Merrill, and concluded by stating that “It is my understanding that all counsel of record have been informed of the above and consent.”
The Monday after Thanksgiving, Sarah Weddington called Robert Seaver at the Court and described the situation. “I told her to call Lucas + work it out—that I said it seemed she had the prior right,” Seaver jotted down in a note. Following their conversation, Sarah tried unsuccessfully to reach Roy by phone, and then typed out a letter to Seaver confirming that she and not Lucas would present the oral argument. She reiterated that “I was one of the two women lawyers who originally filed” Roe and that “Mr. Lucas has been involved in the case only since the district court decision.” She “had hoped to speak with Mr. Lucas before taking any action to change the designation of counsel,” but as she had not succeeded in reaching him by phone, “I do not feel that I can wait longer.” She dispatched copies of the message to Seaver to both Roy Merrill and to Lucas, with the latter accompanied by a brusque letter claiming that Lucas had repeatedly misled her about the Madison Institute. She asserted that “both my husband and I quit our jobs in Fort Worth in reliance on your promise of support,” and she declared that she wanted to terminate her affiliation with the Institute in early 1972. The following day, prior to either of Weddington’s letters being received, Robert Seaver wrote to her, with copies to both Coffee and Lucas, saying that as far as the Court was concerned, the matter was now settled: “In light of the letter I received from Linda N. Coffee dated November 23 and your call yesterday, your name is being listed as counsel who will argue for appellants” on December 13. That ratification of Marsha King’s decision left a deeply despondent Roy Lucas feeling that his expertise would now go to waste, but the apparently victorious Sarah Weddington was anything but relieved. A day or two after her correspondence with Seaver, she phoned Roy Merrill to give him an update, and Merrill never forgot the call. “‘I’m going to argue the case,’” Sarah told him, “and then she just broke down crying. I mean, just wept.”60
Before either Sarah Weddington or the Supreme Court would have to confront the Roe and Doe arguments on December 13, however, a related matter of much lower visibility would receive the seven justices’ full-scale consideration on November 17: Massachusetts’s appeal from the First Circuit’s decision in Bill Baird’s case more than a year earlier voiding the state’s anticontraception statute that exempted married couples but prohibited the distribution of contraceptives to single people. The high court had accepted the appeal almost nine months earlier, and the principal briefs as well as three amicus briefs in support of Baird had been submitted by the middle of the summer. Early in the fall, however, two senior figures who had long been active in population affairs, former Alaska Senator Ernest Gruening and retired General William Draper, had prevailed upon Baird to replace the Boston attorney who had represented him without charge in the B.U. case for more than four years, Joseph J. Balliro, with recently defeated Maryland Senator Joseph D. Tydings, a well-recognized, high-status figure on the Washington political scene. Baird felt badly about deserting Balliro, and Balliro himself initially tried to block the substitution, but by the end of October Tydings and his law firm had assumed full command of Baird’s representation.
Harriet Pilpel and colleagues who had prepared an amicus brief on behalf of PPFA organized a moot court session for Tydings in advance of the real oral argument, but the most notable of the briefs filed in the case was the fourth and final amicus submission, written by John A. Robertson on behalf of the American Civil Liberties Union. ACLU legal director Mel Wulf had advised Robertson to “stick entirely to the privacy point,” and Robertson, hoping to encourage a broadly worded as well as affirmative opinion, wrote a brief that inclusively championed “the fundamental nature of the right to privacy in the context of intimate sexual relationships.” Robertson emphasized that the existing decisions in several abortion cases, including Roe and Doe, expansively read Griswold “as establishing a right of sexual privacy which extends to both married and single men and women” alike. If such a “right of sexual privacy” did indeed protect the contraceptive practices of single individuals as well as married couples, Baird’s 1967 distribution of contraceptive foam to a young woman who was presumably unmarried might well invoke just as “fundamental” a right as the marital one so explicitly acknowledged in Griswold. Under the existing Massachusetts statute which the First Circuit had voided, Robertson coyly noted, “Newlyweds face the peculiar dilemma of having to see a doctor after their wedding and before their wedding night.”61
When the Supreme Court argument of Eisenstadt v. Baird got underway on the afternoon of November 17, Massachusetts prosecutor Joseph R. Nolan tried to insist that Baird’s status as a nonphysician was the key fact in the case. Justice Brennan peppered Nolan with questions to such an extent that the Massachusetts attorney all but completely lost his focus. Nolan sought to regain the initiative by contending that “there are some very dangerous sidelights and side effects to the use of many contraceptives” and that Baird’s public distribution of the foam meant that “There is no right of privacy involved here with him. This is not a Griswold situation.” Nolan’s failure to make any headway under sustained questioning, however, led Brennan to lament that “I’m sorry, I just don’t follow you, that’s all.” Nolan responded by admonishing the seven justices that “You certainly do not sit as a super legislature” to determine the wisdom of the Massachusetts law, nor was the Court “being asked to determine whether or not contraception is, per se, evil or in violation of the natural law,” even though he and others did believe that it was “against the natural law.” Chief Justice Burger sought to help him by observing that Nolan’s strongest possible argument was that the purpose of the Massachusetts law was “to protect people from harmful substances at the hands of nonphysicians,” but by that point most of Nolan’s time had expired.
Former Senator Tydings began his argument by highlighting federal efforts to encourage contraceptive practices, and asserted that the state statute was “inherently unconstitutional because there is no compelling state reason for it.” At three p.m. the argument adjourned until the following morning, at which time Justice Stewart rather openly agreed with Tydings about the seeming illogic of the Massachusetts law. Tydings concluded his remarks well before his time had expired by observing that “what the Griswold case really held was what Justice Harlan said in his dissent back in Poe,” but prosecutor Nolan, in his brief rebuttal comments, again sought to sever any linkage to Griswold. Baird’s offense had not involved a married couple, the actual use of contraceptives, or a physician. “If there’s any case that’s distinguishable with ease, it’s the Griswold case,” he blithely asserted.62
The Eisenstadt arguments had been less than dazzling, and, aside from a reference by Tydings to the “unborn child,” they had illuminated no apparent linkages between this possible offspring of Griswold and the upcoming abortion cases. When the justices convened on Friday for their private conference, Chief Justice Burger began the discussion of Eisenstadt by saying that he would vote to sustain the Massachusetts statute and reverse the First Circuit’s decision, primarily because Baird was not a doctor and the state ought to be able to regulate the distribution of contraceptives. This was in the “medicinal field + [the] state can select the person to dispense the matter,” Justice Douglas recorded Burger as explaining. Douglas himself succinctly asserted that he would affirm on First Amendment grounds the reversal of Baird’s conviction, but Justice Brennan, while agreeing with Douglas about the result, said that he “can’t go on that ground” because “the man did more than talk—he handed out a device,” an action that under the Court’s own precedents clearly fell outside the protection of the First Amendment. Instead, Brennan said, he would hold that Baird’s conduct was within “the penumbra of Griswold.”
Potter Stewart bluntly volunteered that the Massachusetts law reflected “complete irrationality” as there was no health basis for distinguishing between married and unmarried individuals’ access to contraceptives nor had Massachusetts shown why items such as vaginal foam should only be prescribed by doctors. Like Brennan, Stewart said, he would rest on Griswold. Byron White, however, indicated that he would vote to reverse the decision below, for under a 1963 Court decision disavowing any judicial review of the wisdom of state regulation of commercial matters, a state could decide “that bread can be sold only by license” if it so chose. “That’s all there is to this case,” White declared, although he conceded that there “might be something” to Tydings’s argument that federal policy strongly supported contraceptive availability.
Thurgood Marshall quickly stated that he would vote to affirm the First Circuit, and Harry Blackmun, seeming to indicate at least some ambivalence, said that it would be “better to affirm” since the Massachusetts law was “not a public health statute.” Blackmun went on to say that he was “bothered by [the] fact that” under the law “a device may be prescribed only by doctors,” and Byron White jumped in to reiterate that a state could “have it sold only through doctors” or require a license. White did admit that a state “cannot distinguish between married and unmarried,” but Warren Burger asserted that “this is like cigarettes—a vendor’s license is needed.” Bill Douglas said that a while a state could control a commercial operation, what Baird had done “was only free speech.” In frustration Burger said that he would pass rather than vote either to reverse or affirm, since he “can’t discover what the issue is.”63
The justices moved on to other cases without explicitly deciding what to do with Eisenstadt, although it was apparent that there was a clear majority of at least five votes—Douglas, Brennan, Stewart, Marshall, and Blackmun—for affirming the First Circuit’s ruling in one way or another. William O. Douglas prepared a brief written statement of his views within four or five days of the conference discussion, but only on November 23, after Bill Brennan had discussed the situation with both Douglas and Burger, did everyone agree that Douglas—as the senior member of the apparent majority—would assign the case to Brennan for the preparation of a relatively brief per curiam opinion simply acknowledging that several different rationales underlay the formal affirmance. Burger now indicated that “My vote is a questionable reverse with a note ‘could affirm—depends on how written,’” and Douglas acknowledged that the per curiam solution was the best method for “accommodating all different points of view,” with the likelihood being that several separate concurring opinions would also be filed. Within three weeks Brennan’s chambers had prepared a first-draft opinion of the court, but when it was circulated to his six sitting colleagues on December 13—the very same day that Roe and Doe were argued—only Thurgood Marshall and then Potter Stewart formally joined Brennan’s statement. Some days later Chief Justice Burger distributed a note saying that he would eventually file a dissent or join one from Byron White, and by the final days of 1971 it was clear that Eisenstadt v. Baird, not a high-priority case to begin with, would not actually be decided or announced until sometime in the early spring of 1972.64
One person who had gone out of her way to attend the Supreme Court oral argument in Eisenstadt was Margie Hames, who—in distinct contradiction of Roy Lucas’s private aspersions—had taken her responsibilities in preparing for the presentation of Doe v. Bolton with the utmost seriousness. At the recommendation of her longtime law school friend Fred Graham, who was now the Supreme Court correspondent of the New York Times, Hames also had gone up to Washington one month earlier to observe the oral argument of an even lower-visibility gender discrimination appeal, Reed v. Reed, which the Court disposed of with a speed and brevity that failed to indicate the case’s subsequent importance. Hames had carefully reviewed a transcript of the oral argument in Vuitch, and after attending the Eisenstadt presentation she went so far as to write the Florida attorney who was counsel in an obscenity case which was scheduled for argument the same day as Doe and Roe—and which the Court also had accepted at the very same time—to explore the potential jurisdictional similarities that might well in the Court’s view link the otherwise disparate cases.65
Hames like Sarah Weddington had no excess optimism about what the Court might do with Doe and Roe, but on November 30, with the Powell and Rehnquist nominations still awaiting final confirmation votes on the Senate floor, Texas’s Jay Floyd filed a formal motion with the Court expressly requesting that the Roe argument be postponed for several weeks until the two new justices were officially seated and the Court had returned to full strength. The “extreme importance” and “far-reaching effect” of any decision on the constitutionality of antiabortion statutes, Floyd said, suggested that a decision should come from an unabridged rather than an incomplete Supreme Court. Just such a motion had of course been recommended to Floyd nine weeks earlier by Dennis Horan, the Chicago attorney who had helped prepare so much of Texas’s brief, but it was an issue all of the lawyers, and a good many journalists, had also pondered. Weddington began rooting against Floyd’s request from the moment she learned of it, for she, like many other participants and observers, accepted the likely accuracy of prognostications that foresaw a favorable 4 to 3 majority on a seven-justice bench—Douglas, Brennan, Stewart, and Marshall versus White, Burger, and Blackmun—but an unfavorable 5 to 4 margin once Powell’s and Rehnquist’s votes were added to what otherwise would be a trio of dissenters. One medical weekly, without naming its observer, quoted a “Washington attorney” who candidly expressed Joseph Nellis’s pessimistic outlook: “The successful constitutional challenges may have reached their peak. It looks to me like it’s downhill for a while.”
A few of the justices’ own clerks wondered whether Floyd’s motion might indeed be granted, but no justice chose to champion it, and on December 7—one day after the Senate had confirmed Lewis Powell’s nomination by a vote of 89 to 1—the Court denied the request without dissent. That action was viewed as surprising by at least some journalistic observers, and it strongly reinforced the view that the Court might well be preparing to dispose of Roe and Doe on jurisdictional grounds rather than use the two appeals to reach the constitutional merits of abortion laws. Three days after the denial the Senate likewise confirmed William Rehnquist’s considerably more controversial nomination by a margin of 68 to 26, but neither Rehnquist nor Powell would actually take their seats on the high court until after the first of the year, thus leaving Roe and Doe to be heard—and decided—by the seven-member bench.66
In the ten days preceding the Supreme Court hearing, considerable public attention was also directed toward a bevy of other abortion law developments. The New York Times published a prominent story on a twenty-three-year-old Florida woman, Shirley Wheeler, who had been criminally convicted and sentenced to two years’ probation for having undergone an abortion and refusing to divulge who had performed the procedure. Nancy Stearns and Cyril Means were assisting with a further state court appeal, and the SWP’s WONAAC group was attempting to capitalize on Wheeler’s utterly unique legal victimization to draw attention to its own organizational existence. More ominously, Fordham University law professor Robert M. Byrn, a prolific Roman Catholic critic of any form of abortion law liberalization, filed suit against the New York law on December 3 in a court whose judge willingly appointed Byrn as the official legal “guardian” of all fetuses between four and twenty-four weeks of development which were scheduled for upcoming abortions in all of New York City’s municipal hospitals. The New York press devoted considerable attention to Byrn, a forty-year-old bachelor who still lived with his mother, but Roy Lucas warned the city’s principal attorney that “the Byrn case is not the aberration of one nut, but may be the beginning of an aggressive litigation program by a power group of zealots.” Lucas himself was displaying no public bruises from his painful and privately humiliating denouement with Sarah Weddington and Marsha King, perhaps in part because he had two important state Supreme Court presentations of his own just days in advance of Roe and Doe. On December 7 he argued against the constitutionality of the South Dakota abortion statute in Pierre on behalf on Dr. Ben Munson, and two days later he appeared before the Minnesota Supreme Court in St. Paul on behalf of Jane Hodgson’s effort to win a constitutionally based reversal of her criminal abortion conviction from one year earlier. That same week, the California Supreme Court heard argument on both of the two contrasting lower court rulings in People v. Pettegrew and People v. Barksdale, the former of which had affirmed the constitutionality of the state’s 1967 reform statute and the latter of which had voided it. An overflow crowd turned out for the hearing, and repeal proponents left the courtroom feeling decidedly optimistic, looking forward to a favorable constitutional ruling sometime in the first half of 1972.67
During the week leading up to the Roe and Doe arguments in Washington, Margie Hames in Atlanta and Sarah Weddington in Austin both made their final preparations. Sarah spent one long evening at the law school with six of her former professors throwing questions at her in an intensive moot court practice session, and she held several similar but far more informal dry runs with various other Austin friends. Sarah and Ron went up to Washington several days in advance of the actual hearing, and Cyril Means and Harriet Pilpel organized yet another moot court panel there for both Sarah and Margie. Sarah was very fearful that one or another justice would ask her a question for which she would not have an answer, and to Joe Nellis Sarah seemed “absolutely frightened” the day before the high court argument. That evening Sarah and Ron had dinner with Margie Hames and her husband so that the two attorneys would have a final opportunity to compare notes and agree upon which points one or the other would try to make in their successive arguments, and the next morning Sarah, along with Linda Coffee, arrived at the Supreme Court building more than an hour before the ten a.m. starting time for Roe’s oral argument.68
In a way the scene in the Supreme Court’s impressive but intimate courtroom on Monday morning, December 13, included a significant number of the people who had helped bring the movement for abortion law repeal to the brink of victory. Sandra Bensing, Norma McCorvey, and Dr. Hallford were all unsurprisingly absent, but Ruste Kitfield and Judy and Peter Bourne, along with a slew of Margie Hames’s legal colleagues—Tobi Schwartz, Reber Boult, Gale Siegel, and Pam Walker—were all on hand to represent Doe, and Marsha and David King, along with Ginny Whitehill, Ruth Bowers, Roy Merrill, and Fred Bruner had all made the trip up from Texas. Bob Hall, Jimmye Kimmey, Cyril Means, and Harriet Pilpel were among the group from New York, and Jane Hodgson was in town from Minnesota. A subdued Roy Lucas would join Sarah and Linda as the third attorney sitting at the counsel’s table at the front of the courtroom, and most of the young men who had comprised the Madison Institute’s summer staff—Nick Danforth, Brian Sullivan, and Dan Schneider—were in the audience as well. Only Dorothy Beasley and one assistant were on hand for Georgia, and Jay Floyd was almost alone on behalf of Texas, as neither Henry Wade nor John Tolle had seen any point in making the trip. Dennis Horan, however, had come from Chicago, and both Father James McHugh of the U.S. Catholic Conference and Alfred Scanlan, who had prepared the amicus brief of the National Right to Life Committee, were also in attendance.69
At a few moments after ten, Chief Justice Burger announced that the seven-member bench would hear argument in Roe v. Wade and called upon Sarah Weddington. Sarah began her thirty-minute presentation in a firm and confident voice, and the first question directed to her came from Burger himself, who asked whether Vuitch disposed of some of Roe’s issues. Sarah said no, since the D.C. statute, unlike Texas’s more restrictive one, included that crucial word “health,” and she took the opportunity Burger had provided to also note that the recent affirmation of the Texas law by the state Court of Criminal Appeals in Thompson had expressly rejected a vagueness challenge. Sarah then moved on to a point she had specially prepared for, and told the justices that “a pregnancy to a woman is perhaps one of the most determinative aspects of her life. It disrupts her body, it disrupts her education, it disrupts her employment, and it often disrupts her entire family life.” “Because of the impact on the woman,” she continued, “this certainly, in as far as there are any rights which are fundamental, is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.”
Sarah had stated the personal essence of her argument clearly and succinctly, but Potter Stewart brought her up short with a polite but pointed comment. “Mrs. Weddington, so far, on the merits, you’ve told us about the important impact of this law, and you’ve made a very eloquent policy argument against it. I trust you are going to get to what provisions of the Constitution you rely on.” Sarah replied by referring to the Ninth Amendment and citing a brand-new historical article by Cyril Means which contended that as of 1791, when the Ninth Amendment was ratified, no common law prohibition against abortion existed in America. She moved on to mention Griswold, and acknowledged that since “it appears that the members of the Court in that case were obviously divided as to the specific constitutional framework of the right which they held to exist,” hence “I’m a little reluctant to aspire to a wisdom that the Court did not, was not in agreement on. I do feel,” she continued, “that the Ninth Amendment is an appropriate place for the freedom to rest. I think the Fourteenth Amendment is equally an appropriate place, under the right of persons to life, liberty, and the pursuit of happiness,” a phrase that actually appeared in the Declaration of Independence, and not in the Fourteenth Amendment. “I think,” Sarah went on, that “in as far as liberty is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy.”
Stewart asked her if she was relying “simply on the due process clause of the Fourteenth Amendment.” Sarah answered that “We had originally brought the suit alleging both the due process clause, equal protection clause, the Ninth Amendment, and a variety of others.” “And anything else that might obtain,” Stewart interjected, drawing laughter from the audience and a laughing “Yes” from Weddington herself. Sarah repeatedly cited both the Ninth and Fourteenth Amendments, and stated that “I think in as far as the Court has said that there is a penumbra that exists to encompass the entire purpose of the Constitution, that I think one of the purposes of the Constitution was to guarantee to the individual the right to determine the course of their own lives.”
Sarah made a second reference to Means’s article when one justice asked whether there was any legislative history as to what the state interest was in enacting the law in the nineteenth century, and when both Justices Stewart and White inquired as to whether the state had a proper interest in protecting the fetus during at least some stages of pregnancy, Weddington sought to elude the issue of stages by pointing out that the Texas statute made no such distinction in prohibiting all abortions except those necessary to save a pregnant woman’s life. Pressed several times more on the matter, Sarah finally conceded that “Obviously I have a much more difficult time saying that the state has no interest in late pregnancy.” Why is that, White asked her. “I think it’s more the emotional response to a late pregnancy, rather than it is any constitutional” consideration, Sarah answered. She made another reference to how Means’s article showed that the Constitution “attaches protection to the person at the time of birth” and not any earlier, and then she proceeded to articulate how a federal court injunction against the state statute was the only legal remedy open to Texas women, for Texas law included no declaratory judgment process and women themselves could not be charged as criminal defendants under the state abortion law. She had time to mention again the recent state court affirmance in Thompson, and then her thirty minutes were over.
Jay Floyd began his presentation with an ostensibly deferential comment that many listeners thought was inappropriate. “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” Margie Hames found the remark “very chauvinistic,” and later recounted that “I thought Burger was going to come right off the bench at him. He glared him down. He got the point right away that this was not appropriate in that court.” Floyd moved on to assert that “Mary and John Doe” lacked any standing to challenge the Texas law and that “Jane Roe’s” claim was moot once she was no longer pregnant. Potter Stewart, however, immediately challenged Floyd’s suggestion of mootness by noting that Roe was a class action and that the Court could of course “take judicial notice of the fact that there are at any given time unmarried pregnant females in the state of Texas.” Floyd nonetheless tried to pursue his mootness point, and Stewart asked “what procedure would you suggest for any pregnant female in the state of Texas ever to get any judicial consideration of this constitutional claim?” Floyd responded that “I do not believe it can be done,” and then added that “I think she makes her choice prior to the time she becomes pregnant.” Stewart immediately shot back that “Maybe she makes her choice when she decides to live in Texas,” and laughter filled the courtroom. Floyd somewhat testily—“May I proceed?”—tried to regain the floor, but Stewart jabbed him again, observing that “There’s no restriction on moving, you know.”
Floyd finally was able to continue, but in contrast to Sarah Weddington’s smooth and articulate presentation, Floyd spoke slowly and at times haltingly, despite having prepared a detailed outline of what he hoped to cover. He readily volunteered that he had “no idea” as to whether the protection of the fetus was the original, nineteenth-century intent of the Texas statute, and as both Justices Stewart and Marshall pressed him to identify what state interests presently underlay the law, Floyd’s exposition became more and more hesitant. Pushed to identify precisely when fetal “life” commenced, he conceded that “there are unanswerable questions in this field,” which drew audience laughter, and when Justice Marshall answered that “I appreciate it,” Floyd tried to back pedal, saying “This is an artless statement on my part.” Marshall replied “I withdraw the question,” which generated further laughter. Floyd stumbled again in erroneously suggesting that the lower court decision in the North Carolina case, Corkey v. Edwards, had somehow been affirmed by the Supreme Court, and then Stewart pointedly noted how Texas’s abortion ban included no exception for women who had been raped. “Such a woman wouldn’t have had a choice, would she?” he pointedly asked Floyd, and by the time that Floyd attempted to articulate a response, his thirty minutes had expired.
With only a moment’s pause as the attorneys changed places, the Court proceeded immediately to the oral argument of Doe v. Bolton. Tobi Schwartz and Reber Boult joined Margie Hames at the front table, and while Margie like Sarah later acknowledged that at first she “was very frightened,” Margie’s description of “Mary Doe’s” situation and Doe’s lower court record proceeded smoothly. She emphasized that “our appeal here is directed primarily at the procedural requirements left standing by the District Court,” especially the Georgia law’s requirement that each doctor-sanctioned abortion also receive the endorsement of two other physicians and the approval of a three-member hospital committee. Hames explained that any claim of a “compelling state interest” in protecting the fetus was clearly untenable in a situation where a reform statute explicitly sanctioned the “therapeutic” abortions of many fetuses, but she directed most of her fire at the shortcomings of three-judge panel’s ruling, and not at the state’s contravening arguments. “It is our contention that the procedural requirements left standing by the court below have virtually manipulated out of existence the right to terminate an unwanted pregnancy,” she told the justices. “These procedures are so cumbersome, costly, and time-consuming as to” deny “Mary Doe” and other women like her the Fourteenth Amendment due process liberty right that the Doe panel ostensibly had recognized in its basic holding against the Georgia reform law.
Dorothy Beasley began her argument just before the Court’s noontime lunch break. Beasley in her first sentence emphasized that the issue in Doe was “the value which is to be placed on fetal life,” and Beasley’s remarkably vibrant and high-pitched voice gave her presentation an energetic and articulate air that outshone the three speakers who had preceded her. She devoted considerable attention to the fetus, and she tackled the Griswold issue quite directly: “A person has a right to be let alone, certainly,” Beasley acknowledged, “but not when another person is involved, or another human entity is involved.” After the luncheon recess Justice Douglas questioned her assertion that Doe no longer presented an actual controversy, and when Beasley sat down Margie Hames used her one remaining minute to recommend Cyril Means’s new article to the justices and to remind them that “the right of privacy, as enunciated in Griswold, of course, is our basic reliance.”70
The Roe and Doe attorneys were generally pleased with their presentations and understandably relieved to have gotten through them without any significant difficulties. Several supportive onlookers thought that the undeniable weakness of Floyd’s exposition had given the Roe and Doe plaintiffs the better of the arguments, but other supporters conceded privately that Dorothy Beasley probably had been the most impressive speaker of the four. Weddington herself was inclined to count only Douglas and Stewart as all-but-certain yes votes, and a number of courtroom observers were far from sure that there was any majority, even on the seven-justice court, in favor of striking down either the Texas and/or Georgia abortion laws. Roy Lucas told two acquaintances that “It appeared to me unlikely from the tenor of oral arguments … that any earthshaking landmarks on the merits would be forthcoming soon,” and while Lucas’s pessimistic reaction was perhaps otherwise explainable, he nonetheless observed that “a decision to remand both cases to the Fifth Circuit appears more likely” than a ruling on the merits. Few other principals were quite that gloomy, and later in the day the Hameses held a reception for both the Roe and Doe supporters in their suite at the Hays-Adams Hotel. That evening Ruth Bowers gave a dinner at an Arlington steak house for all of the Texans, including Marsha and David King, as well as several of the Madison Institute’s summer alumni, but Lucas understandably was not among the guests.71
Far more important than the reactions of the Roe and Doe supporters to the oral arguments were the reactions of the seven members of the Supreme Court, and on Thursday morning December 16, one day ahead of their normal Friday schedule, the justices convened for their private conference on the cases in which they had heard argument that week. Warren Burger began the discussion of Roe by summarizing the statuses of the different plaintiffs—“Jane Roe,” the “Does,” and Dr. Hallford—and the decision of the Dallas panel. Burger then offered his own views, saying that the most notable of their procedural decisions earlier in the year, Younger v. Harris, barred any federal court relief for Dr. Hallford and that the three-judge court had been correct in concluding that the “Does” did not have standing to sue. “Jane Roe,” however, certainly had standing, for, just as Sarah Weddington had stressed at oral argument, “she can’t be prosecuted and [the] state gave her no remedy. She didn’t lose standing through mootness,” and, apropos of Potter Stewart’s comment during the argument, the class of women whom Jane Roe represented undeniably contained some who presently had unwanted pregnancies. Nonetheless, Burger said, for the Dallas panel to have issued a “declaratory judgment without [an] injunction is tantamount to [a] mere advisory opinion.” “Jane Roe,” he went on, was entitled to an injunction if the Texas abortion statute was indeed unconstitutional. The “balance here,” Burger explained, “is between [the] state’s interest in protecting fetal life and [a] woman’s interest in not having children.” However, he asked, did an unmarried woman like “Jane Roe” “also represent married women” and, if so, “what of the husband’s interest” in a situation “where he won’t consent?” After all that, Burger nonetheless concluded by saying that he could not find the Texas statute either vague or otherwise unconstitutional although it was “certainly archaic and obsolete.”
William O. Douglas immediately disagreed. The statute was unconstitutional, and abortion was “basically a medical, psychiatric problem.” Pursuant to Stewart’s argument in Vuitch, the Texas statute was unacceptably vague “unless it gives a licensed physician an immunity for good faith abortions.” In Douglas’s judgment, all of the Roe parties had standing, and Younger represented no obstacle to a decision in Roe. William J. Brennan essentially agreed. “Jane Roe” and the other plaintiffs all had standing, and the Texas law was clearly infirm, for it would not allow for an abortion even for a twelve-year-old or a woman who had been raped. Brennan said that he was willing to hold that the statute was unacceptably vague, but that he would vote to affirm the Dallas panel’s decision except with regard to the “Does’” standing.
Potter Stewart was inclined to agree that both the “Does” and Dr. Hallford also had standing, but those issues should not confuse the discussion, he said, “if we agree [that the] unmarried girl has standing to get a judgment on the merits. She clearly has standing,” and the Dallas panel had been correct in issuing a declaratory judgment but not an injunction. On the merits, Stewart remarked, he agreed with Bill Douglas, although of course a state could legislate at least to the extent of requiring that abortions be performed by doctors and that after a “certain period of pregnancy” a woman could not have an abortion.
Byron White agreed with Potter Stewart on all the preliminary matters, but took the other view on the merits. The plaintiffs “want us to say that women have [a] choice under [the] Ninth Amendment privacy argument” to “get rid of [the] child” wholly “apart from health reasons.” Thus the real question, White said, was “does [the] state have [the] police power to protect [a] fetus that has life in it as opposed to [the] desire of the mother.” White concluded by indicating that he was “not at rest on [the] merits,” and that prompted Stewart to reiterate that a “state can legislate in this field—they can require that only doctors can do this,” Justice Douglas recorded him as saying.
Thurgood Marshall agreed with Bill Douglas and Bill Brennan even though the “time problem concerns me.” While he did “not see what interest [the] state has in abortion in [the] week after conception,” he nonetheless wondered why a state could not prohibit abortion after a “certain stage,” for “if [the] fetus comes out breathing,” to “kill it is murder.” Constitutionally, Marshall said, he would base their decision on Fourteenth Amendment liberty, for “‘liberty’ covers about any right to have things done to your body.”
Harry Blackmun stated that he too agreed that since “Jane Roe” had standing, the Court did not have to concern itself with the married couple or the doctor. On the merits, Blackmun said, the central question was “can a state properly outlaw all abortions?” If one accepted the thesis that there was fetal “life” from conception onward, a “strong argument” could be made “that it can.” But, he went on, “there are opposing interests—[the] right of [the] mother to life and to mental and physical health, [the] right of [the] parents in [a] case of rape, [the right of the] state in [a] case of incest.” Disagreeing with Thurgood Marshall, Blackmun said that “there is no absolute right to do with one’s body what you like.” “Jane Roe,” he explained, did have Fourteenth Amendment rights here, and on top of that the Texas law did “not go far enough to protect doctors.” The statute also impinged on “Roe’s” Ninth Amendment rights and he not only would affirm the Dallas panel’s declaratory judgment but “could go so far as to grant an injunction” against the Texas statute. In closing, Blackmun observed that the Texas and Georgia statutes represented a stark contrast, for until the Georgia law had been “ruined” by the Atlanta panel’s ruling, Georgia had had “a fine statute.”
Warren Burger then moved immediately into the discussion of Doe v. Bolton. The Chief Justice said that while he believed that “Mary Doe” certainly had standing, he nonetheless did not agree with how the three-judge court had “carved up” the Georgia reform statute. The state, Burger went on, had “a duty to protect fetal life at some stage” and the Atlanta panel had given no clear reasons for truncating the 1968 law. In short, Burger said, he would hold that the Georgia measure was constitutional.
William O. Douglas readily conceded that “This is [a] much better statute than Texas,” but he sought to emphasize that in light of Doe’s highly abbreviated record, we “don’t know how this statute operates. Is it weighted on [the] side of only those who can afford this? What about the poor?” All in all, Douglas said, his preference would be to remand Doe to the three-judge court for a full evidentiary hearing on whether the Georgia law in practice was discriminatory.
Thurgood Marshall jumped in to say that while a measure like Georgia’s might work in an urban center, in rural areas where “there are no negro doctors” Douglas’s fear would be correct. Then Bill Brennan, speaking in turn, stated that he would vote to affirm the Atlanta decision and that he also would take the further step of voiding Georgia’s hospital committee approval requirement as too restrictive. Brennan added, however, that he would not reach the issue as to whether the woman’s Ninth Amendment right was absolute.
Potter Stewart simply and succinctly stated that he agreed fully with Brennan, and Byron White began his remarks by observing that Doe was “a hard case.” Nonetheless, a “state has [the] power to protect [the] unborn child,” and the Georgia statute was clearly not burdensome to the woman, for “Mary Doe” had had no difficulty in getting her abortion request reviewed by the Atlanta doctors. White said he believed that Georgia had “struck the right balance here” in view of the fact that a state does have “the power to declare abortions illegal,” and hence he would vote to reverse the three-judge court.
Justice Marshall briefly said that he would affirm, since his view was somewhere between Bill Douglas’s and Bill Brennan’s. Harry Blackmun, the final justice to speak, stated that “medically this statute is perfectly workable.” He believed the doctor plaintiffs like “Mary Doe” also had standing to challenge the law, and that neither Georgia’s residency requirement nor the hospital approval process really troubled him. Some cases, Blackmun told his colleagues, are “borderline” and doctors preferred “the security” that such a review board provided. What he would like to see, Blackmun went on, was an “opinion that recognizes [the] opposing interests in fetal life and [the] mother’s interest in health and happiness.” The Georgia law “strikes a balance that is fair,” though he too would like to see factual findings on the points that Justice Douglas had noted. Blackmun explained that he was “sympathetic to [the] psychiatric people” and that the Court “should try to provide standards” for how a measure like Georgia’s ought to operate. He would be “perfectly willing,” Blackmun concluded, “to paint some standards and remand for lower court findings as to how it operates,” particularly with regard to whether the Georgia measure did “deny equal protection by discriminating against the poor.” Byron White chimed in that while equal protection was certainly a real issue with regard to the provision of some medical services, and while he was willing to remand for such a hearing, he was not sure that equal protection was really present as an issue here.72
The outcome of the conference discussion of Roe and Doe was much clearer with regard to the former than with regard to the latter. Bill Brennan tallied the votes in Roe as 6 to 1 to affirm, though his own notes, just like Bill Douglas’s, undeniably showed that the actual division was 5 to 2, with both Byron White and a somewhat ambivalent Warren Burger favoring reversal of the Dallas panel’s declaratory judgment. In Doe, however, where Brennan had simply scribbled a question mark, the bottom-line result was hard to categorize, for while there were three clear votes for affirming the declaratory judgment—Brennan, Stewart, and Marshall—and two for reversal—Burger and White—both Bill Douglas and Harry Blackmun had seemed to favor remanding the case so that a richer and more detailed record could be generated.
For William O. Douglas, the 1971 Term was witnessing the most congenial relations he had had with any one year’s law clerks in almost a decade. Even more widely regarded as an aloof and unfriendly loner in 1971 than he had been six or ten years earlier at the time of Griswold and Poe, Douglas in the first few months of the 1971 Term had nonetheless already developed the habit of sitting down with his three clerks—Dick Jacobson, Bill Alsup, and Ken Reed—over an open bottle of vodka immediately upon returning from each of the justices’ private conferences. This Thursday afternoon Douglas was in an especially good mood, for he had been very pleasantly surprised by Harry Blackmun’s comments about both Roe and Doe. Many of the clerks—and at least some of the justices—still adhered to the largely dismissive “Minnesota Twin” view of Blackmun as a predictable conservative which had emerged eighteen months earlier when he had been nominated and confirmed to the high court, and hence for Blackmun to disagree with Warren Burger in an important case was a highly significant development. The clerks had found Blackmun to be a friendly and considerate man who even would invite them to join him at breakfast, but among some clerks there was increasing talk about whether Blackmun’s painstakingly slow pace of work meant that the new justice was in over his head. Blackmun’s unwillingness to delegate even his most mundane opinion-writing tasks to his clerks was causing him to devote much of his own time to highly detailed work on obscure or complicated cases such as Port of Portland v. United States, and clerks in other chambers felt considerable sympathy for their friends who worked for Blackmun.
One of Douglas’s clerks, speaking with one of Blackmun’s clerks prior to Douglas’s late afternoon return from the conference, had come away from the conversation with an explicit impression that Blackmun, at least in his clerk’s view, was very much hoping to write the Court’s opinions in both Roe and Doe. Thus when Douglas sat down with his clerks to recount the conference discussion of the abortion cases and particularly Harry Blackmun’s pleasantly surprising stance, the clerk passed along the report that Blackmun was eager to have the abortion opinions assigned to him. Since Warren Burger was clearly a member of the 5 to 2 minority in Roe, Douglas as the senior member of the majority would be responsible for assigning the opinion, and he had already mentioned to Potter Stewart—who in turn told his own clerks—that he was inclined to assign Roe to Blackmun as an acknowledgment of the significance of Blackmun’s divergence from Burger. His clerk’s report seemed to further reinforce Douglas’s inclination, but the next day Douglas received an extremely rude surprise when Warren Burger’s assignment list for the week’s cases showed that the Chief Justice—despite his own remarks in conference—had taken it upon himself to assign Roe as well as Doe to Harry Blackmun.
Douglas was offended by Burger’s erroneous presumption that both Roe and Doe were his and not Douglas’s responsibility to assign, but while the assignment of Roe to Blackmun was exactly what Douglas himself had intended to do, Burger’s further effrontery in assigning Doe to Blackmun was a far more serious problem, for—at least in Douglas’s mind—Blackmun in Doe was in the minority rather than in what Douglas believed was the majority. Rethinking the conference discussion of Doe without any careful review of his own notes, Douglas convinced himself that the conference had yielded a clear 4 to 3 split in which Burger, White, and Blackmun had been the minority. “In summary,” Douglas scrawled to himself, “WOD, WJB, PS & TM agreed that a state abortion law could require all abortions to be performed by a licensed physician, that a woman’s psychological problems as well as her health problems must be considered”—which was actually a point that Blackmun had touched on during the Doe discussion—“and that some period must be prescribed protecting fetal life.”
The next day, a Saturday, Douglas dictated a polite but pointed note to Burger about the Friday listing of Doe v. Bolton. “Dear Chief,” he began. “As respects your assignment in this case, my notes show”—at least in Douglas’s memory—“there were four votes to hold parts of the Georgia Act unconstitutional and to remand for further findings, e.g. on equal protection”—another point where Blackmun actually had agreed with Douglas. “Those four were Bill Brennan, Potter Stewart, Thurgood Marshall and me,” Douglas stated. “There were three to sustain the law as written—you, Byron White, and Harry Blackmun,” he asserted. “I would think, therefore, that to save further time and trouble, one of the four, rather than one of the three, should write the opinion.”
In standard Court practice, Douglas sent copies of his note to all the other justices, and on Monday Warren Burger did the same with his letter of reply. “At the close of discussion” in Doe, he told Douglas, “I remarked to the Conference that there were, literally, not enough columns to mark up an accurate reflection of the voting in either the Georgia or the Texas cases. I therefore marked down no votes and said this was a case that would have to stand or fall on the writing, when it was done. That is still my view of how to handle these two … sensitive cases, which, I might add, are quite probable candidates for reargument” once newly confirmed Justices Powell and Rehnquist formally joined the Court shortly after New Year’s. “However,” Burger concluded, “I have no desire to restrain anyone’s writing even though I do not have the same impression of views” as Douglas had maintained.73
Warren Burger’s response ended the exchange about the desirability of Doe as well as Roe being assigned to Harry Blackmun, and at least in later years Blackmun himself would profess that at the time he “was not very pleased to have the assignment come to me” and that he had accepted it and set to work on the two opinions “without enthusiasm.” None of his colleagues expected Blackmun to circulate any drafts for at least several months, but by Wednesday, December 22, just two days after Warren Burger’s note, William O. Douglas, in his usual speedy fashion, already had a rough draft of a Doe opinion that he was ready to share privately with Bill Brennan. “Let me have any of your suggestions, criticisms, ideas, etc. and I will incorporate them, and then we can talk later as to strategy,” Douglas volunteered in his cover letter. Douglas’s hastily prepared draft featured a long quotation from his Griswold opinion invoking the right to privacy and far briefer citations to additional Supreme Court precedents in Pierce, Skinner, and Loving. Douglas directly quoted and endorsed the Atlanta panel’s conclusion that Griswold-style privacy also applied to abortion, but he added that “the state has interests to protect” and that abortion “is a rightful concern of society. The woman’s health is part of that concern; and the life of the fetus after quickening is another concern. These concerns justify the state in treating the problem as a medical one.” With the Georgia law, however, “the difficulty is that the statute as construed and applied does not give full sweep to the ‘psychological as well as physical well-being’ which saved the concept ‘health’ from being void for vagueness” in Vuitch. Returning to the larger constitutional issue, Douglas wrote that “The right of privacy described in Griswold is a species of ‘liberty’ of the person as that word is used in the Fourteenth Amendment. It is a concept that acquires substance, not from the predilections of judges, but from the emanations of the various provisions of the Bill of Rights, including the Ninth Amendment. There is no ‘liberty,’ in the absolute sense, to do with one’s body as one likes,” Douglas went on, and with regard to abortion, “the ‘liberty’ of the mother, though rooted as it is in the Constitution, may be qualified by the state.” However, “where fundamental personal rights and liberties are involved, the corrective legislation must be ‘narrowly drawn,’” and Georgia could not require the sort of elaborate, hospital committee approval mechanism mandated by the 1968 statute. Where a “good-faith decision of the patient’s chosen physician is overridden and the final decision passed on to others in whose selection that patient has no part,” there would be “a total destruction of the freedom of association between physician and patient and the privacy which that entails,” Douglas asserted. In conclusion, he added that the case should be remanded so that the Atlanta panel could further determine whether the Georgia procedure in practice also violated equal protection.
One week later Bill Brennan phoned Douglas to say that while he would be sending Douglas a long, written reaction to his initial draft the following day, it would be best not to distribute any revision until Blackmun circulated at least a first draft in Roe, even though that might be several months away. Douglas agreed, and Brennan’s ensuing letter laid out a comprehensive and analytically impressive survey of all the questions raised by both Roe and Doe. None of the preliminary issues barred reaching the constitutional merits, and with regard to the Georgia provisions at issue in Doe, “I would strike all of those procedures down except for the requirement that the abortion be performed by a licensed physician.” Constitutionally, Brennan said, they should rely upon privacy rather than the First Amendment, and should emphasize that “the statute infringes the right of privacy … because it limits abortions to enumerated cases,” and the Atlanta panel had been correct in holding that Georgia could “not limit the number of reasons for which an abortion may be sought.” With regard to privacy, Brennan went on,