I agree with you that the right is a species of “liberty” (although, as I mentioned yesterday, I think the Ninth Amendment … should be brought into this problem at greater length), but I would identify three groups of fundamental freedoms that “liberty” encompasses: first, freedom from bodily restraint or inspection, freedom to do with one’s body as one likes, and freedom to care for one’s health and person; second, freedom of choice in the basic decisions of life, such as marriage, divorce, procreation, contraception, and the education and upbringing of children; and, third, autonomous control over the development and expression of one’s intellect and personality.
Brennan cited a number of precedents, particularly Jacobson v. Massachusetts, the 1905 vaccination case, which offered language that would support his first category, and he added that he would “peg the right to care for one’s health and person to the right of privacy rather than directly to the First Amendment partly because (1) it would seem to be broader than the right to consult with, and act on the advice of, the physician of one’s choice and include, for example, access to non-prescriptive drugs and (2) it identifies the right squarely as that of the individual, not that of the individual together with his doctor.” They ought to avoid any such associational formulation, in favor of a privacy-based holding “that there is a fundamental interest in the individual’s safeguarding his health.”
With regard to his second major category, Brennan explained that they should rely upon Loving, Griswold, and other older precedents in addition to his own recently circulated opinion in Eisenstadt that so far only Marshall and Stewart—and not Douglas—had formally joined. Brennan gently emphasized that his Eisenstadt draft, “in its discussion of Griswold[,] is helpful in addressing the abortion question,” and he politely noted that if Douglas “could find it possible to join” his opinion in addition to filing a concurrence, Eisenstadt would be assured of a majority among the seven-justice court since the likelihood of Harry Blackmun’s joining the opinion remained uncertain.
For his third category, Brennan said simply that he would cite the 1969 decision in Stanley v. Georgia and its explicit invocation of the privacy language that Louis Brandeis had used in his Olmstead dissent four decades earlier. All in all, Brennan observed, “The decision whether to abort a pregnancy obviously fits directly within each of the categories of fundamental freedoms I’ve identified and, therefore, should be held to involve a basic individual right.” As had Douglas in his draft,
I would next emphasize that that conclusion is only the beginning of the problem—that the crucial question is whether the State has a compelling interest in regulating abortion that is achieved without necessarily intruding upon the individual’s right. But here I would deal at length not only with the health concern for the well-being of the mother, but with the material interest in the life of the fetus and the moral interest in sanctifying life in general. This would perhaps be the most difficult part of the opinion. I would come out about where Justice Clark does in his Loyola University Law Review article—that “moral predilections must not be allowed to influence our minds in setting legal distinctions” (quoting Holmes) and that “the law deals in reality, not obscurity—the known rather than the unknown. When sperm meets egg life may form, but quite often it does not. [Indeed, the brief for the appellants in the Texas abortion case quotes an estimate of the rate of ‘spontaneous wastage’ of 50%]. The law does not deal in speculation. The phenomenon of life takes time to develop, and [only after] it is actually present, it cannot be destroyed.” The inconsistent position taken by Georgia in allowing destruction of the fetus in some but not all cases might also be mentioned. Thus, although I would, of course, find a compelling State interest in requiring abortions to be performed by doctors, I would deny any such interest in the life of the fetus in the early stages of pregnancy. On the other hand, I would leave open the question when life “is actually present”—whether there is some point in the term before birth at which the interest in the life of the fetus does become subordinating.
“The right of privacy in the matter of abortions,” Brennan concluded, “means that the decision is that of the woman and her alone.” The Atlanta panel “was wrong in holding that the State has a legitimate interest in regulating the quality of the decision,” and while he would affirm the panel’s “conclusion that the reasons for an abortion may not be prescribed,” he also “would further hold that the only restraint a State may constitutionally impose upon the woman’s individual decision is that the abortion must be performed by a licensed physician.” Since the Court could assume that Georgia, and Texas, would obey final declaratory judgments, the high court thus could also affirm the lower courts’ refusals to issue federal injunctions against the state statutes.74
Bill Brennan’s eleven-page, single-spaced letter to Bill Douglas was obviously much more than a commentary on Douglas’s far less carefully considered draft statement in Doe, and both men—along with several of their clerks—recognized that it could prove to be a richly detailed outline for a full-scale opinion should Harry Blackmun’s efforts prove unsatisfactory. Blackmun himself was openly uncertain as to whether he would or indeed should produce Roe and Doe opinions that would decide the two cases sometime in the early months of 1972, for when Warren Burger, ten days after Justices Powell and Rehnquist formally joined the Court, circulated a letter asking his colleagues to note which cases presently under consideration should be reexamined by all nine justices, Blackmun quickly replied that “I nominate for reargument the two abortion cases.” “It seems to me,” he explained in a letter that went to all eight of his colleagues, “that the importance of the issue is such that the cases merit full bench treatment” rather than resolution simply by the seven justices who had heard argument on December 13. Any formal decision was postponed, however, until Blackmun would be ready with his own first drafts, and while Bill Douglas continued to make private emendations in his Doe statement, the Court turned aside requests for action in other abortion cases. Only in Wisconsin’s ongoing effort to prosecute Madison’s Dr. Lee Kennan did the Court take any substantive action whatsoever, and even there, in simply affirming without opinion the earlier lower court injunction barring any prosecution, they acted expressly on procedural grounds.75
While the Supreme Court privately contemplated how and when to decide Roe and Doe, other litigation continued to percolate in lesser venues. The Second Circuit Court of Appeals reinstated the New Haven women’s suit against Connecticut’s abortion law that had been dismissed seven months earlier by a hostile jurist and set the case for full consideration by a three-judge panel. In New York an intermediate appellate court blocked Professor Byrn’s ongoing effort to halt all abortions in the city’s municipal hospitals, but the state’s highest court, by a 4 to 3 margin, upheld the 1971 state policy denying Medicaid funding for nontherapeutic abortions, and a federal court challenge to the policy was initiated on Long Island.76 In mid-January the Vermont Supreme Court struck down Vermont’s antiabortion statute on state law grounds that were not appealable to the U.S. Supreme Court, and one month later the Florida Supreme Court bluntly reiterated in a second decision its previous ruling nine months earlier that that state’s antiabortion law was unconstitutionally vague. The Florida court explicitly asked the state legislature to fill the ensuing void with “appropriate remedial legislation,” and just seven weeks later Florida enacted a therapeutic reform statute, the first liberalization measure to win approval anywhere in the country since the Washington state repeal referendum had passed in November, 1970, a full eighteen months earlier.77
Similar referendum efforts aimed at the upcoming 1972 fall elections were underway both in North Dakota and in Michigan, where a federal case was also just getting started,78 but in other states such as Oklahoma and Georgia, repeal bills died even in advance of legislative floor votes.79 In Texas Sarah Weddington had announced her candidacy for an Austin seat in the state House, and increasing numbers of women seeking abortions were taking advantage of the remarkably liberal situation in California rather than travel to Mexico. Local activists like Ginny Whitehill told reporters that they remained hopeful of a Supreme Court victory but were also making tentative plans for the 1973 Texas legislature, and Whitehill told NARAL’s Lee Gidding that the Texas activists hoped to recruit “more establishment type people” rather than the SWP members who had been so visible during the 1971 legislative campaign.80
In early February the generally conservative American Bar Association adopted a repeal stance with regard to the first twenty weeks of pregnancy, and five weeks later a twenty-four member presidentially appointed commission on population growth similarly endorsed “abortion on request” with only the four Roman Catholic members of the panel dissenting. In addition, January results from a nationwide Gallup poll showed that some 57 percent of Americans—including 54 percent of Catholics—believed that the abortion decision should be left to a woman and her doctor, but in the eyes of most repeal proponents, these promising signs were more than outweighed by the continuing evidence of widespread legislative resistance to abortion law liberalization. Activists as different in background and style as Bob Hall and Larry Lader both warned that the repeal movement had now been stalled for well over a year, and while both the lawyers and nonlawyers sought to remain optimistic with regard to the U.S. Supreme Court, some judicial developments—such as the Massachusetts Supreme Judicial Court’s reinstatement of the criminal charges that had first been filed against Clergy Consultation Service member Reverend Robert Hare almost three years earlier—were certainly not promising.81
Roy Lucas had suffered a two to one defeat—108 to 54—in the NARAL referendum on his board candidacy, and by early in 1972 both the long and short-term financial prospects for the Madison Institute were looking exceedingly bleak. Lucas was beginning to ponder both a move from New York to San Francisco and a reincarnation of his litigation interests under a new rubric of a Population Law Center, but he continued to hear secondhand reports of the Vuitch allegations that he ascribed to Joe Nellis, Larry Lader, and Cyril Means. Nellis had launched an unsuccessful court suit against Dr. Vuitch in an effort to collect disputed legal fees, and while Lucas fully understood Nellis’s animus, he professed puzzlement to a variety of colleagues as to why Lader and especially Means continued to engage in “adolescent games” against him. He acknowledged to one friend that “Cyril desperately needs recognition,” but in a long letter to Harriet Pilpel, Lucas wrathfully conceded that the “misleading” and “fraudulent” claims undeniably underlay his ouster from NARAL. However, he sarcastically told Pilpel, “with Lader and Means at the NARAL helm, the whole matter is akin to being asked to leave Nedicks.” Lucas remained far more defensive about the more principled dispute over his unsuccessful representation of the commercial referral services, and while he told Pilpel that “population and women’s rights are the issue, not my professional fees nor yours,” by March of 1972 the Madison Institute was on its deathbed and members of its pro forma board of trustees were resigning almost weekly.82
By early 1972 the New Jersey case that Lucas had once thought would be the first abortion suit likely to reach the U.S. Supreme Court had been under ostensible consideration for more than thirteen months by the three-judge panel that had heard argument in December 1970. Late in January 1972, attorney Nancy Stearns took the unusual but appropriate step of writing to the court to ask when the case might be decided, and in late February, several weeks after U.S. Circuit Judge Philip Forman had apologized for what he acknowledged was an “extraordinary” delay, the panel by a vote of two to one voided the New Jersey law on grounds of both vagueness and the right to privacy. Judge Forman’s majority opinion highlighted “the critical significance” of Griswold’s invocation of the Ninth Amendment and went on to explain that “the absence of specific language in the Constitution does not dilute or diminish the contention that there is a right of privacy which includes the right to seek an abortion in the early stages of pregnancy.” Forman and District Judge George H. Barlow concluded that “a woman has a constitutional right of privacy cognizable under the Ninth and Fourteenth Amendments to determine for herself whether to bear a child or to terminate a pregnancy in its early stages,” and in a separate opinion the third member of the panel, District Judge Leonard Garth, endorsed Forman’s reliance on Griswold but asserted that Griswold’s marital privacy emphasis meant that the panel’s extension of Griswold to abortion should thus be limited only to protecting such a choice for married women.83
The New Jersey decision attracted considerable press attention, with one Englewood Cliffs practitioner announcing that he immediately would begin performing abortions and NARAL’s Larry Lader excitedly wondering whether the ruling might represent a “breakthrough point” that would allow repeal proponents to regain the initiative.84 Two weeks later, in a far less publicized but substantively even more important decision, a three-judge federal panel in Kansas City endorsed Roy Lucas’s challenge against the hospitalization and multidoctor approval requirements set forth in Kansas’s 1969 reform law. The Kansas provisions were almost identical to the Georgia ones which had been upheld by the Atlanta panel in Doe v. Bolton, and the Kansas City decision represented the first time that any court had voided the highly exclusive hospital criteria that significantly limited the number of facilities providing abortions in most “reform” states. The Kansas panel cited retired Justice Tom Clark’s law review essay in holding that the “fundamental right to individual and marital privacy” authenticated in Griswold “includes within its scope the right to procure an abortion.”85
Far more notable than either the New Jersey or Kansas holdings, however, was the March 22 release of the U.S. Supreme Court’s 6 to 1 decision in Eisenstadt v. Baird. Justice Brennan had indeed finally received William O. Douglas’s endorsement of the opinion which Brennan had first circulated the same day that Roe and Doe were argued, and Douglas’s support—along with that of Thurgood Marshall and Potter Stewart—gave Brennan the four votes necessary to represent a majority of the seven-member Court that had heard Eisenstadt. Byron White in early February had circulated a brief opinion concurring in rather than dissenting from Brennan’s affirmance of the First Circuit decision voiding the Massachusetts anticontraception law, and three weeks later Harry Blackmun joined White’s concurrence rather than Brennan’s opinion for the Court. Chief Justice Burger finally circulated a typescript draft of a dissent during the second week of March, but further delays on Burger’s part postponed Eisenstadt’s actual announcement until March 22.
Much like the First Circuit ruling two years earlier, Brennan’s opinion concluded that Massachusetts’s criminal ban on the distribution of contraceptive articles to unmarried individuals only could not be defended as either a health measure or as a rational means for discouraging nonmarital sex. Since “it would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for” the simple misdemeanor offense of “fornication,” Brennan sardonically observed, the felony statute under which Bill Baird had been convicted violated “the rights of single persons under the Equal Protection Clause” of the Fourteenth Amendment by failing to demonstrat e any “rational basis” for drawing a criminal distinction between married and unmarried individuals. Brennan insisted in a footnote that that fatal flaw meant that the Court did not have to expressly hold that the Massachusetts law “impinges upon fundamental freedoms under Griswold,” but he went on to emphasize that
whatever the right of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.
If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
That crucial sentence had appeared in the Brennan opinion beginning with the very first draft that had been distributed the day of the Roe and Doe arguments, and while it had occasioned no correspondence from other justices, among the clerks there was full awareness that the sentence could and would be read as speaking to much more than simply Massachusetts’s anticontraception statute. “Was that recognized at the time? Was it clear to me that that sentence would have some impact on the abortion question?” the clerk who worked most closely with Brennan on the Eisenstadt opinion asked twenty years later in rephrasing an obvious question. “Yes, I certainly knew that and I believe Justice Brennan did too.” So, of course, did the clerks of other justices who joined the Brennan opinion. “We all saw that sentence, and we all smiled about it,” for it seemed to have a “transparent purpose,” one subsequently explained. “Everyone understood what that sentence in Eisenstadt was doing, but no one believed it would tie anyone’s hands in the abortion context or bind anyone in the future.”
William O. Douglas’s additional concurrence simply reiterated his conference assertion that “This to me is a simple First Amendment case” where Baird’s distribution of the vaginal foam was inseparable from his preceding lecture. Byron White’s separate concurrence, in which Harry Blackmun joined, emphasized that the formal record of Baird’s arrest, trial and conviction never actually indicated whether the young woman to whom he had handed the foam was married or unmarried. Hence, the fact that Baird under the Massachusetts law “could not be convicted for distributing Emko to a married person disposes of this case.” White added that while it would be different had Baird handed out a contraceptive, such as birth control pills, that actually merited prescriptive regulation, Eisenstadt in fact presented “no reason for reaching the novel constitutional question [of] whether a State may restrict or forbid the distribution of contraceptives to the unmarried.”
Warren Burger’s lone dissent insisted that the issue in the case was not the marital status of Baird’s recipient, as even the Massachusetts law itself clearly seemed to indicate, but was instead Baird’s status as a layman rather than a medical professional. “I do not challenge Griswold,” Burger opined, “despite its tenuous moorings to the text of the Constitution, but I cannot view it as controlling authority for this case.” “I simply cannot believe,” he went on, “that the limitation on the class of lawful distributors has significantly impaired the right to use contraceptives in Massachusetts. By relying on Griswold in the present context, the Court has passed beyond the penumbras of the specific guarantees into the uncircumscribed area of personal predilections.”86
Both journalists and attorneys immediately identified Brennan’s memorable paean to “individual” privacy and the fundamental choice of “whether to bear or beget a child” as the key statement in Eisenstadt. Every leading news report highlighted that crucial sentence, and both the Washington Post and the New York Times noted how that “broadly phrased” declaration might well “influence pending abortion cases,” especially since the four signers of the Brennan opinion also constituted a majority of the seven-justice Court that had heard Roe and Doe. The following day Roy Lucas told a Minnesota colleague that while “the effect of the case is to extend privacy rights to the unmarried,” Brennan’s “bear or beget” language meant that “the opinion goes much further.” Margie Hames reacted similarly, telling a Georgia journalist that Eisenstadt made her more optimistic about Doe and Roe, since “the argument for that case was the same as ours—the constitutional right of privacy.”
Since almost all contemporary attention understandably focused upon Brennan’s most quotable and suggestive statement, Brennan’s footnoted assertion that the Court actually was not extending Griswold to establish an individual constitutional right of access to contraceptives was almost completely ignored until law professors in later years began to point out that compositional flaws in the Brennan opinion made it neither as coherent nor as consistent as its author might have wished. Some opponents of abortion—and perhaps of contraception as well—were quick to allege that the Brennan opinion in Eisenstadt was unprincipled both in its extension of Griswold and as an unmistakably calculating effort to pave the way for a constitutional right to choose abortion. One future federal appellate judge asserted that Eisenstadt “unmasks Griswold as based on the idea of sexual liberty rather than privacy,” while a like-minded nonjurist alleged that Eisenstadt revealed how the Supreme Court’s “family rationale of 1965 was simply an expedient fabrication.” Another future circuit judge stated that Eisenstadt’s “revolutionary rationale was probably invented” with Roe and Doe in mind, and a prominent female law professor decried how Eisenstadt had “abruptly severed the privacy right from its attachment to marriage and the family.” Far more insightfully, one of the country’s most perspicacious conservative scholars later identified the basic problem with the Eisenstadt opinion bluntly and succinctly: Brennan had “begged the crucial question” of whether there was or was not a constitutionally protected right to fornicate.87
The Supreme Court’s decision in Eisenstadt v. Baird—or, more precisely, Justice Brennan’s singularly promising sentence—measurably raised the spirits of repeal proponents as they awaited the late June conclusion of the Court’s 1971–1972 Term. Additionally, just four weeks after Eisenstadt, the three-judge court that had been convened to hear the New Haven women’s challenge to Connecticut’s antiabortion law voided the statute on both Ninth and Fourteenth Amendment grounds and then formally enjoined any further enforcement of it. The panel’s 2 to 1 majority opinion prominently quoted Eisenstadt’s “bear or beget” language, and while U.S. District Judge T. Emmet Clarie, who had initially dismissed the suit before being reversed by the Second Circuit Court of Appeals, filed an angry dissent, fellow District Judge Jon O. Newman, in a scholarly concurring opinion that relied heavily upon the work of Cyril Means, emphasized that in light of Griswold there was “no doubt” that a “constitutionally protected zone of privacy” secured a woman’s right to choose abortion. Connecticut officials unsuccessfully sought a stay of the panel’s injunctive order from Supreme Court Justice Thurgood Marshall, and within hours of Marshall’s denial, Governor Thomas J. Meskill—an antiabortion Roman Catholic Republican—called an emergency special session of the state legislature so that a new antiabortion measure could be enacted immediately. Within a week a bill allowing abortions only if a woman’s life was in danger, and providing a five-year jail term for violators, was reported out of committee and passed by a vote of 120 to 49 on the house floor. One idiosyncratic senator who backed repeal mockingly introduced a substitute measure mandating the death penalty rather than five years’ imprisonment, but when the senate by 22 to 13 adopted a provision allowing for abortions in cases of rape or incest and then passed the amended bill by a margin of 21 to 14, Governor Meskill announced that he would veto the bill as too liberal unless the senate reversed itself and adopted the more restrictive version. Adding the senate amendment, Meskill asserted, “amounts to abortion on demand. A woman can merely claim she was raped or it was an incestuous relationship. Everyone who wants an abortion will be reporting rape.” Meskill’s insistence was supported by energetic lobbying on behalf of the Roman Catholic church, and the very next day, with six senators switching their votes, the senate by a narrow margin of 18 to 16 approved the original bill. Meskill immediately signed it into law, and house majority leader Representative Carl Ajello, Jr., explained to reporters that “the impetus for the bill as it was drafted came directly from the Hartford Archdiocese. They didn’t want any loopholes.” The attorneys handling the New Haven women’s suit quickly asked the federal three-judge court to extend its prior injunctive order to cover the new law as well, since it too was clearly unconstitutional under the panel’s earlier decision, but not until midsummer did the court hold a formal hearing and take the matter under full consideration.88
Some legal observers, such as Cyril Means, interpreted Thurgood Marshall’s refusal to issue a stay of the Connecticut court’s initial injunction—especially in the wake of Eisenstadt, and especially when Marshall had issued just such a stay fifteen months earlier in the Illinois case—as a clear sign that the Supreme Court was just about to affirm Roe’s voiding of Texas’s highly similar antiabortion law with “a fairly broad ruling in favor of a woman’s fundamental right to terminate an unwanted pregnancy.” Means warned Harriet Pilpel, however, that even if the final weeks of the Court’s term did indeed produce such a constitutional victory, the growing political presence of antiabortion forces nonetheless meant that “we are in for a long, tough fight” that no doubt would “go on for years and years.” In New York, the increasingly vigorous efforts of abortion opponents such as the Roman Catholic Knights of Columbus, who drew more than ten thousand demonstrators to a “Right to Life Sunday” rally, appeared to be making significant headway in the state legislature, where an antiabortion bill that would revoke the 1970 repeal statute and return the law to a traditional “life-only” exception was approaching a floor vote. NARAL’s Larry Lader warned his colleagues that the legislative situation was now “more critical than ever before,” and New York Governor Nelson Rockefeller, in a compromise gesture that pleased neither side, advocated reducing the 1970 abortion law ceiling from twenty-four to sixteen weeks of pregnancy. Rockefeller stressed that he would veto any all-out reversal of the 1970 statute, and senate majority leader Earl Brydges tried to convince antiabortion legislators that Rockefeller’s pledge meant they instead should back the compromise measure, which Rockefeller had just shifted from sixteen to eighteen weeks.89
Then, however, on May 6, just one day after President Richard M. Nixon publicly rejected the abortion recommendation that had been made two months earlier by his commission on population growth, the Archdiocese of New York released to the press a private letter Nixon had sent to Terence Cardinal Cooke. “The unrestricted abortion policies now recommended by some Americans, and the liberalized abortion policies in effect in some sections of this country,” such as New York, “seem to me impossible to reconcile with either our religious traditions or our Western heritage,” Nixon stated. The letter went on to commend Roman Catholic antiabortion efforts on behalf of “unborn children” as “truly a noble endeavor,” but the public release of Nixon’s missive set off a firestorm of controversy. The New York Times decried what it described as “a President openly working through a particular church to influence the action of a state government” and denounced Nixon for “a blatant misuse of his high position.” Fellow Republican Nelson Rockefeller unsurprisingly was reported to be furious at Nixon’s action, and within forty-eight hours top presidential aide John D. Ehrlichman publicly apologized for the public release of the letter, which he said had been composed by White House speech writer Patrick J. Buchanan.
By that time, however, the bill to revoke the 1970 repeal measure had been passed by the state Assembly on a vote of 79 to 68 after a six-hour debate highlighted by one opponent’s display of a fetus in a jar. Five members who had backed repeal two years earlier now voted to rescind it, and the following day the state Senate, by a margin of 30 to 27, also endorsed revocation. Three days later Governor Rockefeller made good on his promise and vetoed the bill, saying that “the extremes of personal vilification and political coercion brought to bear on members of the Legislature raise serious doubts that the votes to repeal the reforms represented the will of a majority of the people of New York State.” Abortion supporters breathed a huge sigh of relief, and castigated themselves for having demonstrated what Larry Lader termed “overwhelming apathy” and only a “marginally effective” political presence in the face of such a “superbly coordinated” opposition onslaught. “Despite the fact that women’s movement participants were aware of the magnitude of the threat,” one National Organization for Women volunteer later recounted, “abortion activists had difficulty getting other feminists to write letters, make phone calls, [or] go to Albany.” New York public opinion polls showed better than 60 percent popular support for the 1970 law, but the intensity and commitment of abortion opponents had more than offset that majority sentiment. Another major right to life effort to revoke the repeal law would almost certainly be launched in 1973, and many abortion partisans worried that if for any reason Nelson Rockefeller was no longer governor, next time the 1970 measure might not survive at all.90
New York was not the only state where antiabortionists appeared to be gaining strength despite the countervailing public opinion polls. In Pennsylvania, where several trial court rulings against the old abortion statute were pending before the state Supreme Court, the state house approved a new measure with only a maternal life exception by an overwhelming vote of 157 to 34, and in Massachusetts the state house by a similar landslide margin of 178 to 46 passed a measure that would bestow the full legal rights of children upon all fetuses beginning at the moment of conception. Even on the judicial front there was bad news, with a federal three-judge court in Kentucky upholding the constitutionality of that state’s antiabortion law, and while some activists looked forward optimistically to the upcoming November popular referendum on a twenty-week repeal measure in Michigan, most interested observers continued to anticipate that the U.S. Supreme Court might very well resolve the entire matter sometime before the end of June.91
Inside the Court itself, the first tangible development in Roe or Doe since the inconclusive mid-January discussion of whether the cases should be reargued before the full nine-member Court came on May 18 when Harry Blackmun distributed a seventeen-page initial draft of a Roe opinion to his colleagues. “Herewith is a first and tentative draft for this case,” Blackmun’s cover note explained.
Due to the presence of multiple parties and the existence of issues of standing and of appellate routes, it may be somewhat difficult to obtain a consensus on all aspects. My notes indicate, however, that we were generally in agreement to affirm on the merits. That is where I come out on the theory that the Texas statute, despite its narrowness, is unconstitutionally vague.
I think that this would be all that is necessary for disposition of the case, and that we need not get into the more complex Ninth Amendment issue. This may or may not appeal to you.
In any event, I am still flexible as to results, and I shall do my best to arrive at something which would command a court. Would it be advisable, rather than having numerous concurring and dissenting opinions immediately written, to have each of you express his general views in order to see if we can come together on something?
The Georgia case, yet to come, is more complex. I am still tentatively of the view, as I have been all along, that the Georgia case merits reargument before a full bench. I shall try to produce something, however, so that we may look at it before any decision as to that is made.
Blackmun’s Roe draft was an almost wholly unremarkable document. Ten of its seventeen pages were devoted, as Blackmun’s cover note indicated, to questions of standing and jurisdiction. Only on page eleven did he reach the merits, and just as he said, it discussed the Texas antiabortion law only within the context of whether the statute’s language was inadequately clear. Blackmun concluded that it was indeed “insufficiently informative to the physician to whom it purports to afford a measure of professional protection” and hence was unconstitutionally vague. Thus there was no need, he stated, to consider either the Ninth Amendment argument on which the Dallas panel had based its decision or “the opposing rights of the embryo or fetus during the respective prenatal trimesters.”
Blackmun’s opinions in the abortion cases had been eagerly awaited in the chambers of those justices who comprised the apparent majority, but when his Roe draft arrived on Thursday the 18th, some clerks who read it were utterly amazed at what an “awful” and inadequate statement it really was. George Frampton, the Blackmun clerk whom the other clerks knew was working most closely with the justice on the abortion cases, was a popular and well-respected figure among his colleagues, and for several months he had been reassuring his friends in other chambers that Blackmun’s vote to strike the Texas statute was indeed firm. Frampton’s assurances had convinced his friends, and several of them in turn had conveyed their impressions to their own justices. William O. Douglas had remained wary, however, that Warren Burger might persuade his old friend to adopt a more deferential attitude toward antiabortion laws, and Douglas had also continued to worry that Burger might seek to have the cases held over so that Justices Powell and Rehnquist’s votes could potentially shift the result. Blackmun’s cover note significantly heightened the second of those fears, and the disappointing quality of Blackmun’s draft immediately generated a good deal of additional woe in Douglas’s chambers as well as in those of Justices Marshall, Brennan, and Stewart. Several of Frampton’s friends lost little time in “giving George a fair amount of shit,” as one clerk later put it, about his boss’s unsatisfactory draft, and before the day was out a clear consensus had emerged that both Blackmun’s opinion in Roe and his resolve about deciding Doe would have to be strengthened as quickly as possible.
Unsurprisingly, Bill Brennan was the first justice to respond to Harry Blackmun’s request for comments. In a firm but polite note that very same day, Brennan explained that the Roe opinion would have be recast so as to address the basic constitutional question and that no basis existed for holding off on a decision in Doe. “My recollection of the voting on this and the Georgia case,” Brennan began,
was that a majority of us felt that the Constitution required the invalidation of the abortion statutes save to the extent they required that an abortion be performed by a licensed physician within some limited time after conception. I think essentially this was the view shared by Bill, Potter, Thurgood and me. My notes also indicate that you might support this view at least in this Texas case. In the circumstances, I would prefer a disposition of the core constitutional question. Your circulation, however, invalidates the Texas statute only on the vagueness ground. I see no reason for a reargument in the Georgia case. I think we should dispose of both cases on the ground supported by the majority.
This does not mean, however, that I disagree with your conclusion as to the vagueness of the Texas statute. I only feel that there is no point in delaying longer our confrontation with the core issue on which there appears to be a majority and which would make reaching the vagueness issue unnecessary.
The next morning Bill Douglas sent Blackmun a letter that curtly seconded Brennan’s observations:
My notes confirm what Bill Brennan wrote yesterday in his memo to you—that abortion statutes were invalid save as they required that an abortion be performed by a licensed physician within a limited time after conception.
That was the clear view of a majority of the seven who heard the argument. My notes also indicate that the Chief had the opposed view, which made it puzzling as to why he made the assignment at all except that he indicated he might affirm on vagueness. My notes indicate that Byron was not firmly settled and that you might join the majority of four.
So I think we should meet what Bill Brennan calls the “core issue.”
I believe I gave you, some time back, my draft opinion in the Georgia case. I see no reason for reargument on that case.
It always seemed to me to be an easier case than Texas.
The following Monday Blackmun acknowledged Douglas’s letter with a brief note that simply expressed appreciation for how “very helpful” Douglas’s Doe draft had indeed been, and indicating that Blackmun was about ready to circulate a Doe opinion of his own. “You may or may not agree with what I have come up with, but I suspect we are really not very far apart.”92
Three days later Blackmun formally distributed a twenty-five-page first draft of Doe to his colleagues. In his cover memo, he explained that his opinion would void almost all of the remaining provisions of the Georgia reform statute—namely those requiring prior approval by other doctors and by a hospital committee and those restricting abortions to Georgia residents and to certain larger hospitals—that had not been struck down by the Atlanta panel. “What essentially remains is that an abortion may be performed only if the attending physician deems it necessary ‘based upon his best clinical judgment,’ if his judgment is reduced to writing, and if the abortion is performed in a hospital licensed by the State.” In particular, Blackmun said, striking down the hospital committee requirement “was not the easiest conclusion for me to reach,” since in Minnesota
I have worked closely with supervisory hospital committees set up by the medical profession itself, and I have seen them operate over extensive periods. I can state with complete conviction that they serve a high purpose in maintaining standards and in keeping the overzealous surgeon’s knife sheathed. There is a lot of unnecessary surgery done in this country, and intraprofessional restraints of this kind have accomplished much that is unnoticed and certainly is unappreciated by people generally.
I have also seen abortion mills in operation and the general misery they have caused despite their being run by otherwise “competent” technicians.
I should observe that, according to the information contained in some of the briefs, knocking out the Texas statute in Roe v. Wade will invalidate the abortion laws in a majority of our States. Most States focus only on the preservation of the life of the mother. Vuitch, of course, is on the books, and I had assumed that the Conference, at this point, has no intention to overrule it. It is because of Vuitch’s vagueness emphasis and a hope, perhaps forlorn, that we might get a unanimous court in the Texas case, that I took the vagueness route.
Blackmun’s actual Doe draft cited Eisenstadt, Stanley, Griswold, Skinner, and other cases reaching back to Meyer and Pierce in the 1920s, as well as retired Justice Clark’s law review article, to support the holding that “a woman’s interest in making the fundamental personal decision whether or not to bear an unwanted child is within the scope of personal rights protected by the Ninth and Fourteenth Amendments.” That interest, however, was not absolute, and because of the fetus, abortion was “inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or the right to procreate, or private education,” the subjects involved in those earlier cases. Blackmun stated that “somewhere” during pregnancy, “either forthwith at conception, or at ‘quickening,’ or at birth, or at some other point in between, another being becomes involved and the privacy the woman possessed has become dual rather than sole.” Hence “the state’s interest grows stronger as the woman approaches term,” even though the Georgia statute’s requirement that a hospital committee had to approve all abortions, irrespective of the stage of pregnancy, “is unduly restrictive of the patient’s rights and needs.”
Blackmun’s Doe draft was a considerably more sophisticated and far-reaching piece of work than his Roe circulation, but nonetheless Bill Brennan’s first instinct was to ask Blackmun for some significant strengthening. However, quick conversations with Bill Douglas, Potter Stewart, and Thurgood Marshall produced a speedy consensus that the nascent Doe majority would be better advised to join Blackmun’s opinion and then request changes rather than run the risk that extensive preliminary suggestions might incline Blackmun to move for reargument of Doe and even Roe rather than press ahead toward actual decisions. Thus before that very day was out, Justices Douglas, Brennan, and Marshall all sent Blackmun written notes formally joining his Doe opinion. Both Brennan and Marshall told Blackmun that they would send along some suggestions for improvement, and Douglas’s clerk, Bill Alsup, went over several others with George Frampton, but the three immediate and unqualified endorsements created an explicit four-vote majority for deciding Doe. Taking note of that fact, Douglas sent Blackmun an additional message, officially joining the Roe circulation which he had all but dismissed only six days earlier. “I had once thought that this case should be remanded in light of the Georgia case,” Douglas asserted, “But I now think it best to hand it down as you have written it.”93
The next day, Friday, Blackmun sent his colleagues a memo recommending that his Doe draft be augmented to include a clear statement of what would remain the law in Georgia following the Court’s decision: “an abortion is a crime,” his suggestion read, “except an abortion performed in a licensed hospital by a licensed physician ‘based upon his best clinical judgment that an abortion is necessary.’” Additionally, the doctor would have to file a confidential statement to that effect with both the hospital and the state health department. On Monday, Potter Stewart phoned Blackmun to express “basic agreement” with the Doe draft and to request several changes that Blackmun willingly agreed to make. Stewart’s support brought the number of Doe supporters to five of the seven justices who had heard the case, but later that same day, Byron White distributed an incisive and influential three-page dissent from Blackmun’s earlier circulation in Roe. Blackmun’s prospective opinion holding Texas’s antiabortion statute to be unconstitutionally vague, White noted, “necessarily overrules” Vuitch, for “If a standard which refers to the ‘health’ of the mother … is not impermissibly vague, a statutory standard which focuses only on ‘saving the life’ of the mother would appear to be a fortiori acceptable.”94
White’s trenchant observation was a decisive if nonetheless eventually ironic contribution to the Court’s consideration of Roe and Doe. Less than forty-eight hours later, Harry Blackmun circulated another memo to all of his colleagues:
Nearly all of you, other than Lewis Powell and Bill Rehnquist, have been in touch with me about these cases. A number of helpful and valid suggestions have been made.
You will recall that when we were canvassing the list for possible candidates for reargument when the bench would be full, I suggested that, although the Texas case perhaps might come down, the Georgia case should go over. This suggestion was not enthusiastically received. It was the consensus, as I recall, that I produce some drafts and we would see what reactions ensued. I have done this and, frankly, I prepared the Texas memorandum the way I did in the hope that we might come near to agreement there irrespective of the disposition of the Georgia case.
Although it would prove costly to me personally, in the light of energy and hours expended, I have now concluded, somewhat reluctantly, that reargument in both cases at an early date in the next term, would perhaps be advisable. I feel this way because:
1. I believe, on an issue so sensitive and so emotional as this one, the country deserves the conclusion of a nine-man, not a seven-man court, whatever the ultimate decision may be.
2. Although I have worked on these cases with some concentration, I am not yet certain about all the details. Should we make the Georgia case the primary opinion and recast Texas in its light? Should we refrain from emasculation of the Georgia statute and, instead, hold it unconstitutional in its entirety and let the state legislature reconstruct from the beginning? Should we spell out—although it would then necessarily be largely dictum—just what aspects are controllable by the State and to what extent? For example, it has been suggested that upholding Georgia’s provision as to a licensed hospital should be held unconstitutional, and the Court should approve performance of an abortion in a “licensed medical facility.” These are some of the suggestions that have been made and that prompt me to think about a summer’s delay.
I therefore conclude, and move, that both cases go over the Term.
Hardly an hour passed before Blackmun’s colleagues began to respond. Unsurprisingly, William O. Douglas told Blackmun that he felt “quite strongly” that Roe and Doe “should not be reargued.”
In the first place, these cases which were argued last October [sic] have been as thoroughly worked over and considered as any cases ever before the Court in my time.
I know you have done yeoman service and have written two difficult cases, and you have opinions now for a majority, which is 5.
There are always minor differences in style, one writing differently than another. But those two opinions of yours in Texas and Georgia are creditable jobs of craftsmanship and will, I think, stand the test of time.
While we could sit around and make pages of suggestions, I really don’t think that is important. The important thing is to get them down.
In the second place, I have a feeling that where the Court is split 4–4 or 4–2–1 or even in an important constitutional case 4–3, reargument may be desirable. But you have a firm 5 and the firm 5 will be behind you in these two opinions until they come down. It is a difficult field and a difficult subject. But where there is that solid agreement of the majority I think it is important to announce the cases, and let the result be known so that the legislatures can go to work and draft their new laws.
Again, congratulations on a fine job. I hope the 5 can agree to get the cases down this Term, so that we can spend our energies next Term on other matters.
Bill Brennan called Blackmun to convey a similar message, and then dispatched a follow-up note, emphasizing that “I see no reason to put these cases over for reargument. I say that since, as I understand it, there are five of us (Bill Douglas, Potter, Thurgood, you and I) in substantial agreement with both opinions and in that circumstance I question that reargument would change things.” Thurgood Marshall likewise sent along a note saying that “I, too, am opposed to reargument,” but late in the day Warren Burger dispatched a decidedly different message to his eight colleagues:
I have had a great many problems with these cases from the outset. They are not as simple for me as they appear to be for others. The States have, I should think, as much concern in this area as in any within their province; federal power has only that which can be traced to a specific provision of the Constitution.
Perhaps my problem arises from the mediocre to poor help from counsel. On reargument, I would propose we appoint amici for both sides, but that can wait. This is as sensitive and difficult an issue as any in this Court in my time and I want to hear more and think more when I am not trying to sort out several dozen other difficult cases.
Hence, I vote to reargue early in the next Term.95
Burger’s memo set off alarm bells in at least four chambers. The angriest reaction came from William O. Douglas, who assumed that Burger would not try to postpone Roe and Doe, no matter how optimistic Burger might feel about adding the votes of Justices Powell and Rehnquist to his own and Byron White’s, unless Burger believed that there was a potential fifth vote—i.e., Harry Blackmun—that could transform June’s two-justice minority into an October majority. Douglas immediately resolved to dissent publicly if Burger and Blackmun did draw majority support to hold the cases over, and the next morning Douglas sent a short but pointed note to Burger, with copies to all other justices: “If the vote of the Conference is to reargue, then I will file a statement telling what is happening to us and the tragedy it entails.”
Douglas’s threat, however, failed to have the effect he desired, for later that day both Lewis Powell and then Bill Rehnquist distributed memos agreeing that the cases should be held over. Powell noted how he and Rehnquist after being seated had not taken part in the January discussion of what cases might merit reargument, but
The present question arises in a different context. I have been on the Court for more than half a term. It may be that I now have a duty to participate in this decision, although from a purely personal viewpoint I would be more than happy to leave this one to others. I have not read the briefs; nor have I read either of Harry’s opinions. I am too concerned about circulating my own remaining opinions to be studying cases in which I did not participate. I certainly do not know how I would vote if the cases are reargued.
In any event, I have concluded that it is appropriate for me to participate in the pending question. I have read the memoranda circulated, and am persuaded to favor reargument primarily by the fact that Harry Blackmun, the author of the opinions, thinks the cases should be carried over and reargued next fall. His position, based on months of study, suggests enough doubt on an issue of large national importance to justify the few months delay.96
Bill Rehnquist said simply that he agreed with Powell, and as it became apparent that there likely would be a five-vote majority in favor of reargument—even though Byron White had yet to be formally heard from—the anger of those who had briefly comprised Blackmun’s now-evanescent majority openly exploded. Bill Douglas, in line with his earlier threat, drafted a furious memo—clearly designed for public rather than private consumption—denouncing what he thought Warren Burger was up to. It highlighted how the relatively complicated decision in Vuitch had been handed down almost within three months of oral argument, whereas close to six months had now passed since the arguments in Roe and Doe. It asserted that in the initial conference discussion Burger had “represented the minority view” and had “forcefully argued his viewpoint on the issues,” yet nonetheless had assigned the majority opinions, “an action no Chief Justice in my time would ever have taken.” Burger’s behavior, Douglas went on, revealed that “there is a destructive force at work in the Court. When a Chief Justice tries to bend the Court to his will by manipulating assignments, the integrity of the institution is imperiled.” In Doe and Roe, opinions had been circulated, “and each commands the votes of five members of the Court. Those votes are firm,” and “The cases should therefore be announced. The plea that the cases be reargued is merely strategy by a minority somehow to suppress the majority view with the hope that exigencies of time will change the result. That might be achieved of course by death or conceivably retirement. But that kind of strategy dilutes the integrity of the Court and makes the decisions here depend on the manipulative skill of a Chief Justice.”
Just as angry as Douglas, however, though less inclined to express it on paper, was Potter Stewart, who had become more and more upset about what he regarded as Burger’s disingenuous conduct as the Court’s year had progressed. Other justices such as Thurgood Marshall and Bill Brennan also believed that Burger’s behavior with regard to opinion assignment had repeatedly verged on the improper, but Stewart’s anger was especially acute, and Stewart’s own clerks, as well as others, were quite aware of Stewart’s “very intense” hostility toward Burger. The move to hold over the abortion cases further strengthened Stewart’s feelings, and within a day or two of Burger’s May 31 memo, he let Bill Brennan know exactly what he was thinking, as Brennan then described in a brief, handwritten note to Bill Douglas:
I will be God-damned! At lunch today, Potter expressed his outrage at the high handed way things are going, particularly the assumption that a single Justice if CJ can order things his own way, + that he can hold up for nine months anything he chooses, even if the rest of us are ready to bring down 4–3s for example. He also told me he will not vote to overrule Wade, Miranda etc. + resents CJ’s confidence that he has Powell + Rehnquist in his pocket. Potter wants to make an issue of these things—maybe fur will fly this afternoon.
Whether or not Stewart personally confronted Burger at conference—and if so, no notes were taken—Bill Brennan, while wholly sympathetic to both Douglas’s and Stewart’s anger, fully appreciated that if the battle became too intense, or if Douglas went public, both the Court itself, as well as the prospective decisions in Doe, Roe, and other cases in which Blackmun, Powell, or Rehnquist might prove decisive, could well end up among the gravely wounded. When Douglas on June 2 gave Brennan a printed copy of his prospective public dissent from any formal order for reargument, Brennan took his pencil and edited the statement extensively, taking special care to remove all of the personal references to Burger. Brennan was literally the only justice who had anything even approaching a personal friendship with the standoffish Douglas, and he returned the draft dissent with a “Dear Bill” note gently observing that “If anything is to be made public (& I have serious reservations on that score), I hope the pencilled out portions can be omitted.” Two days later Byron White circulated his own formal statement affirming the view that Roe and Doe should indeed be reargued in the fall, and although Douglas in mid-June sent two copies of a revised version of his dissent to each of his colleagues’ chambers, by the time Douglas left for his summer home in Goose Prairie, Washington, several days before the end of the Court’s term, Bill Brennan’s gentle but persistent entreaties had convinced him that his angry statement should indeed not be published. When the Court on June 26 publicly announced that Roe and Doe would be carried over and set for reargument sometime in the fall, the only appendage when the brief and unrevealing order was formally published was a simple indication that Justice Douglas dissented from the decision.97
News of the Court’s action heightened the stress that the attorneys on both sides of the two cases already had been experiencing in anticipation of a late June decision. Roy Lucas, who by now had closed the Madison Institute and moved to San Francisco, told a friend that “the suspense is getting to me.” Both Linda Coffee and Sarah Weddington, who three weeks earlier had won a runoff primary for the Democratic nomination for a Texas House seat in heavily Democratic Austin, understandably felt that the news might well mean trouble. Margie Hames was similarly worried, while Jay Floyd, who had wanted Powell and Rehnquist to participate in the case seven months earlier, felt a slight burst of optimism. Dorothy Beasley, who had delivered three additional Supreme Court arguments since Doe—two extremely visible death penalty cases that would be handed down three days later plus a jury composition suit that had been decided the week before—experienced both a “terrible sinking feeling” at not having prevailed plus a sense of “tremendous relief” that she would have a second shot. Most journalists and commentators initially attached no particular meaning to the Court’s action, but eight days later, on July 4, a front-page story in the Washington Post changed almost everything.98
Headlined “Move by Burger May Shift Court’s Stand on Abortion,” the unbylined story stated that the Chief Justice had “helped to prevent the Supreme Court from deciding two abortion cases this term and may have caused an ultimate shift in the court’s position on abortion.” Citing only “informed” and “reliable” sources, the Post said that “a majority of the seven-man court in tentative voting at the conference favored proponents of legalized abortion in both cases. Though the exact vote on each case is not known, Burger and Justice Byron R. White dissented in both.” The story went on to refer to a William O. Douglas to Burger memorandum that had objected to Burger’s assigning the cases to Harry Blackmun, and that Blackmun during the spring had prepared draft opinions holding both antiabortion laws unconstitutional on a variety of grounds, including the right to privacy. The story also reported that Blackmun had asked to have the cases held over, and that a majority of the Court, including Burger, had agreed, over Douglas’s strenuous objection. The following day the New York Times, without ever mentioning the Post’s story, reported that while “Justices who could be reached refused to comment,” “sources close to the Court” had confirmed the news.
One justice who could not be reached was William O. Douglas, whose summer home in Washington state did not have a phone, but the very day that the Post account appeared, Douglas had happened to call his wife Cathy back in Washington from the nearest accessible phone, and she immediately apprised him of the Post’s report. Douglas was truly mortified, and without delay he sent Warren Burger a handwritten letter of regret. Although Douglas’s salutation of “Dear Chief Justice” was notably impersonal, he explained how Cathy had told him about the Post’s
nasty story about the Abortion Cases, my memo to the Conference, etc. etc.
I am upset and appalled. I have never breathed a word concerning these cases, or my memo, to anyone outside the Court. I have no idea where the writer got the story.
We have our differences; but so far as I am concerned they are wholly internal; and if revealed, they are mirrored in opinions filed, never in “leaks” to the press.
I am taking the liberty of sending a copy of this letter to you to the other Brethren.
Somewhat curiously, Douglas closed his letter “With affectionate regards,” but while Douglas understandably expected that Burger and others would assume that he was the source of the Post’s unprecedented story, the more complicated truth was that the story had emerged in large part because of an indiscretion that had landed in the lap of Jack Fuller, a Yale Law School student who was working as a Post summer intern. In addition, the larger story of internal Court unhappiness with Burger was a favorite subject of the justice who loathed Warren Burger the most intensely of all, Potter Stewart. Several years later it would be no secret at the Court that Stewart, apropos of one young Post reporter—who in July 1972 was busy helping investigate a “third rate burglary” on the other side of town—“saw Bob Woodward as different from the press,” as a well-informed observer put it. Likewise, numerous other participants in the internal life of the Court, even without being asked, would in later years bring up the subject of Stewart’s acquaintance with another subsequently well-known journalist, simply to insist that it was of course “a friendship, not a relationship.” Far less attention was ever paid to Stewart’s friendship with an older Post reporter who covered the Court, and hence it was no accident that the intern’s good luck resulted in so important a story appearing on the Post’s front page without any byline at all.
Most justices had left Washington for the summer by the time the Post’s story appeared, and it created no immediate crisis or flurry of memos. Harry Blackmun had returned to Minnesota to spend two quiet weeks in the medical library at the Mayo Clinic, where he looked into the history of state abortion statutes, the prior record of various medical and professional groups’ attitudes toward abortion, and the traditional status accorded the antiabortion reference that appeared in doctors’ Hippocratic Oath. George Frampton remained in Washington to help Blackmun incorporate his new research into the existing Doe and Roe drafts, for only in August would the new clerks for the Court’s 1972–1973 term arrive to start work. Even in midsummer, however, Blackmun privately made it clear that there was no chance whatsoever that his position in the abortion cases would shift as a result of any lobbying by the Chief Justice. As one Blackmun intimate later recounted, “there was no question that Blackmun was tired of being referred to as a ‘Minnesota Twin’ and tired of being leaned on by such an overbearing son-of-a-bitch as Warren Burger.”
Most of July passed without any follow-up developments to the Post story whatsoever, but late in the month Warren Burger wrote Bill Douglas a four-page, single-spaced “PERSONAL” and “CONFIDENTIAL” letter reviewing all of the earlier events, and mailed copies to the other seven justices as well. Burger asserted that he was “impelled” to compose the letter in light of Douglas’s internally distributed but never published dissent, for it had contained “a number of factual errors … that should not be allowed to stand uncorrected.” Additionally, since Douglas’s “circulation of at least 18 copies” of the document had created the “obvious risk that the subject would, as it did, get outside the security of the Court, albeit in garbled form,”
something akin to “due process” suggests that the facts be clarified of record.
1. It is not accurate, as you state, that “The Chief Justice represented the minority view in the Conference” on the abortion cases, unless you add that there was no majority for any firm position. On the Texas case there was a consensus, if not unanimity, that the Texas statute had to fall. There were varying views as to the basis. No one’s notes are controlling nor likely to be comprehensive, or even precisely accurate. Mine are “final disposition to wait on writing and grounds” as to both cases.
My notes show, and my recollection is the same, that on the Georgia case there was no “majority” in the sense of identifying the assigning authority. It is not in accord with my records of the Conference or my recollection that “out of the seven there were four who initially took a majority view,” as you state. There simply was no majority for any clear-cut disposition on all the issues or even the basic issues, and that is not at all unusual in a case of this kind. Some of us saw one aspect of infirmity in the Georgia statute; others saw different weaknesses. The discussion was extended and positions altered in the course of it—which is also not unusual.
In an odd sort of overkill, Burger went on at some length to emphasize that neither Douglas, Brennan, Stewart, White nor Marshall—the five justices besides himself and Blackmun who heard Doe—had ever expressly indicated that they rather than Burger should have assigned Doe. “The correct evaluation of the Conference discussion, as I see it, was made by at least three Justices during the Conference, when they said their final position, in the Georgia case particularly, would ‘depend on how it is written.’” Douglas’s “unprecedented” draft, Burger suggested, “seems to imply bad faith if positions are not firm, fixed and final when a Conference adjourns.” Lastly, Burger insisted that “I have never taken to assign from a minority position,” and that when Douglas eight months earlier had complained about Burger’s making the assignment in Doe, no other justice had concurred. Thus, “there is not the slightest basis” for Douglas recapitulating that claim again and again.
Burger closed his long letter with incongruously warm greetings to Douglas and his wife from both himself and his spouse, and with little delay Douglas responded with a warm note that seemed to put the controversy to rest:
Dear Chief:
I have your memo relative to my earlier memo on the Abortion Cases. That chapter in the Abortion Cases is for me gone and forgotten.
I wrote the memo for internal consumption only. I showed it to no one not on our staff. I did not “leak” it to the press.
I believe in full candor on our internal procedures, for, as I said before, we are a group with fiercely opposed ideas but we have always been a friendly, harmonious group. That’s the only way I want it.
I did not write the memo for posterity. It would be the least interesting of anything to those who follow.
My Conference notes obviously differ from yours. I think, quite respectfully, that mine are more complete. The reason Bill Brennan, not I, represented the consensus at the first Conference on the Abortion Cases was that I thought at the time that the cases—at least Georgia’s—could be disposed of on Equal Protection grounds—a theory that did not hold up on further study. It was, however, clear that there were five who probably would reverse [sic: affirm]; and on assignments we all deal only with probabilities, not with certainties.
Douglas concluded by mentioning that in a few days’ time Justice and Mrs. Rehnquist would be visiting him and Cathy at their summer home, and inviting Burger and his wife to soon do the same.99
The Washington Post story generated relatively little discussion or analysis among the relevant litigators, who neither dismissed nor fully accepted its rendition of events inside the Court. Both Sarah and Ron Weddington and Margie Hames attended the American Bar Association’s summer meeting in San Francisco, where Sarah was told that “Blackmun’s clerk stayed late this summer to finish writing the opinion” and where Justice Powell delivered what Weddington felt was a discouraging speech decrying America’s growing sexual permissiveness. “I also had a few minutes to talk with Justice Douglas during the ABA meeting,” Sarah told NARAL’s Lee Gidding, “but he was extremely guarded about any comment regarding the case.” Antiabortion activists, who met in Philadelphia for the third annual assembly of the National Right to Life Committee, were similarly uncertain about the Court and laid plans to push for a federal constitutional amendment reestablishing “the rights of the unborn” should the decisions invalidate antiabortion laws. More and more journalistic accounts were crediting the “right to life” forces with rapidly expanding political influence, and nowhere were those perceptions more readily apparent than in the refusal of the Democratic party and its newly chosen presidential nominee, South Dakota Senator George McGovern, to take any position whatsoever on the issue of abortion. Prominent feminist writers and political activists such as Betty Friedan and Gloria Steinem denounced McGovern for his repeated equivocations, but most commentators portrayed the Democrats’ stance as a politically astute move in the face of President Nixon’s efforts to capitalize upon his well-publicized opposition to abortion as part of his reelection strategy.100
On the legal front, Roy Lucas achieved another lower court triumph similar to his Kansas City victory when a federal district judge in Baltimore, citing Griswold and Eisenstadt, threw out Dr. Vuitch’s 1969 Maryland abortion conviction and voided the hospitalization requirement that Maryland’s reform statute, like the Georgia one under challenge in Doe, imposed upon all doctors.101 Two weeks later New York’s highest court affirmed the earlier dismissal of Professor Byrn’s effort to challenge the constitutionality of that state’s 1970 repeal statute on behalf of unwanted fetuses, holding by a 5 to 2 margin that “unborn children have never been recognized as persons in the law in the whole sense.” Byrn announced that he would appeal again, this time to the U.S. Supreme Court, but several weeks later New York right-to-life forces suffered another setback when a three-judge federal panel acting on equal protection grounds overturned New York state’s refusal to provide Medicaid funding for poor women’s abortions, a policy that had previously survived challenge in state courts.102 Across the Hudson River in New Jersey, however, antiabortion prosecutors who deeply resented the earlier federal court invalidation of their state’s abortion statute, defiantly arrested the Englewood Cliffs physician who had greeted the decision by publicly announcing his willingness to perform the procedure. In Indiana, the state Supreme Court upheld the abortion law on the grounds that the measure reflected a compelling state interest in protecting fetal life, but in Michigan a state appellate court declared that “the question of whether any given woman should be given a therapeutic abortion during the first trimester is a question which is properly [left] to the discretion of the physician.”103
Of far greater political significance than those court decisions, however, was the late August release of public opinion figures from a Gallup poll of almost sixteen hundred Americans two months earlier which showed that 64 percent of respondents—including a remarkable 56 percent majority of Roman Catholics—agreed that “the decision to have an abortion should be made solely by a woman and her physician.” That 64 percent figure represented a 7 percent increase since a previous poll in January, and even a majority of the 31 percent of respondents who expressed disagreement with that statement nonetheless indicated that abortions should be allowed when a woman’s physical or mental health was at issue. Only 7 percent of respondents expressed opposition to each and every one of the “therapeutic” exceptions that ranged beyond “life,” and all of those results appeared to seriously contradict the widespread impression that antiabortion forces were rapidly gaining ground. Father James T. McHugh of the U.S. Catholic Conference’s Family Life Bureau immediately attacked the wording of the Gallup question, pointing out that if Americans were asked whether they favored “abortion on demand,” far less than a majority would assent. Two Catholic sociologists, however, reported in the Jesuit magazine America that a comparison of 1965 and 1972 polling data showed a striking change in Roman Catholics’ abortion attitudes, and they emphasized that such a trend would likely continue, since the increasing support for liberalization was disproportionately concentrated among younger Catholics.104
As summer turned to fall, abortion activists’ attention swung increasingly toward the upcoming November referendum in Michigan, where passage of the statewide ballot measure would permit a woman and her doctor to choose abortion at any time during the first twenty weeks of pregnancy. NARAL’s national leaders cited the earlier lesson of New York in warning that “we can be defeated by our own apathy, by our willingness to sit it out and wait for a Supreme Court decision,” and Dr. Jack Stack of Alma, one of the most energetic Michigan activists, admonished his colleagues on the Michigan Abortion Referendum Committee that until midsummer “Many supporters withheld their energies and help in the belief that the Supreme Court would resolve the issue imminently.” Now, with the virtual certainty that the Michigan tally would be recorded at least a month or more before any Supreme Court decision would be handed down, it had become all the more undeniable that “Victory in Michigan is essential to the movement nationwide.” A mid-September poll by the Detroit News was extremely encouraging, for it showed that 57 percent of respondents planned to vote for the proposal, and only 37 percent against, with 6 percent undecided. Three weeks later, in early October, with the election only a month away, the News repeated its survey, and the indications continued to be most heartening: support had increased two points to 59 percent and opposition had slipped by one to 36 percent.105
Only on September 5 did the Supreme Court notify the opposing counsel in both Roe and Doe that the oral reargument of the cases would take place on Wednesday, October 11, but even several weeks in advance of that announcement, Roy Lucas sent Sarah Weddington a five-page letter recapitulating all of their earlier frictions and closing with a plaintive request that he be allowed to present the reargument in Roe. Alternately indignant and forlorn, Lucas’s letter sought both sympathy and renewal. Being taken off the first argument, especially when the reasons “were either irrelevant or shallow,” Lucas said, “was like being told: Thank you for getting jurisdiction, and for four years of your life, and for going into debt up to and beyond your ears, but no thanks. It seemed incomprehensible.” He recounted his painfully penultimate 1971 phone conversation with Marsha King, and described how unmistakably clear it was that she had heard a detailed account of Cyril Means and Joe Nellis’s slurs against him. “In every social movement,” Lucas bitterly observed, “the young upstarts are defamed by others, and the abortion movement was no exception.”
Lucas went on to offer a decidedly creative account of his initial involvement in Roe, asserting that “It was no small undertaking to agree to handle the appeal. I spent months and months of hard work … rather than to let the case die.” Professing that he had presumed that Weddington and Coffee had turned the case over to him for good, Lucas claimed that “I thought you were all honorable people and would not attempt to take unfair advantage of me.” Lucas did concede, with regard to the Madison Institute, that “you probably think I let you and Ron down too, since you both quit your jobs,” but he quickly returned to Roe, acknowledging that their mutual friend and former colleague Nick Danforth “has probably told you how I thought your argument could have been improved” in the initial presentation. “It takes a lot of experience and dedication to be able to anticipate and respond to the Court’s questions in a way which strengthens your case. When Justice Stewart suggested that you get off the policy arguments and talk about law (he put it nicely, though) it was a sign that you were talking to the general public and the audience. The Justices are interested in law,” and Sarah had erred both in her handling of Vuitch and in failing to mention former Justice Clark’s article, for “the Court is more likely to read that than any brief from mortals.” Lucas did admit that “much of your argument was well done, but much could have been far better, and that is crucial with a sharply and closely divided Court.” Given the circumstances, the reargument would be all the more critical. “Not only do a few Justices appear to be wavering, with Justice Burger leading the opposition lobbyists, but also the questioning will be much more difficult and intense.”
After insinuating that Weddington herself had once confessed to Danforth that Lucas could have done a better job than she had, Roy emphasized that “my primary interest has been and remains to see that the abortion repeal movement, and the people affected thereby, receives the most thorough representation and advocacy available … I only regret not having labored more, and especially not having maintained better personal relations with colleagues whose efforts I respect such as you and Ron and many others.” However heartfelt the regret, Lucas closed by highlighting how “the fact of my being taken off the argument in Roe destroyed my fund-raising capabilities,” but that Sarah now had an opportunity to make amends. “The boost of a well-done and successful argument in the fall would change all of that, and would even out our mutual obligations. Think about it. It is up to you.”106
Sarah needed no time at all in order to make up her mind about Lucas’s request, and whether or not Lucas had imagined that he might receive a reply, he should not have been surprised when he did not. Sarah was much more focused on her all-but-certain upcoming election to the Texas house than on sitting down to write a supplemental Supreme Court brief for Roe, but by the second week of September she had prepared a succinctly written seventeen-page statement that noted the relevance of Eisenstadt as well as of the favorable lower court abortion decisions that had been handed down in Vermont, New Jersey, Kansas, Connecticut, and Maryland since Roe’s first argument. Weddington also directly confronted Texas’s prior claim that the purpose of its 1854 statute was to protect fetal life, observing that “since self-abortion is not a crime in Texas, it is not logical to assume that the purpose of the legislature in passing the so-called ‘abortion’ law was to protect the fetus. It is logical that the legislative purpose was to protect the woman and her health.”
Sarah’s brief was somewhat more extensive than the nine-page supplemental submission that Margie Hames filed in Doe, which also stressed Eisenstadt, but whereas Sarah was able to note that abortion availability in Texas remained just as legally restricted as it had been when Roe was first filed, in Georgia, or at least in Atlanta, actual hospital practices had liberalized considerably over the past nine months. The one other supplemental brief, filed on behalf of PPFA by Harriet Pilpel and her colleagues, devoted much of its space to describing how current medical evidence from both reform and repeal states demonstrated that early legal abortions were now even safer for a woman than actual childbirth. Pilpel also sought to remind the Court that “Except possibly for military service, imprisonment and capital punishment … it is difficult to imagine a more drastic restriction on privacy or on the fundamental freedom to control one’s body and one’s life” than compulsory childbearing, a point that was also made in the one new amicus submission supporting the plaintiffs, filed on behalf of several small California organizations. Neither Dorothy Beasley nor Jay Floyd submitted supplemental briefs, but the general counsel of the National Right to Life Committee, Martin F. McKernan, Jr., prepared a short statement urging the Court to reverse the declaratory judgments against the Texas and Georgia laws on the grounds that federal courts should abstain from such holdings. McKernan himself recruited the attorneys general of Utah and Kentucky as signers, and at McKernan’s request Jay Floyd willingly wrote to six other prospects whom McKernan suggested, seeking their endorsement of the impending amicus brief. In the end three other states—Connecticut, Arizona, and Nebraska—signed on to the Right to Life Committee’s project, but when the actual ten-page document was filed with the Court in late September, it featured only the names of the five attorneys general, and no indication whatsoever that it had been initiated or written by the Right to Life Committee.107
The same day that the Attorneys General’s ostensible brief was submitted, the three-judge federal court in Connecticut that had been considering the New Haven women’s complaint against the state’s newly reenacted antiabortion statute struck down the four-month-old law on much the same constitutional grounds that had led them to void its predecessor back in April. U.S. District Judge Jon O. Newman, writing for himself and Circuit Judge J. Edward Lumbard, explicitly acknowledged that annulling the new statute—which declared that Connecticut’s policy was “to protect and preserve human life from the moment of conception,” and allowed only those abortions “necessary to preserve the physical life” of a pregnant woman—was a much tougher decision than the one in the spring. Nevertheless, “the constitutionally protected right of a woman to privacy and personal choice in matters of sex and family life” was undeniable in the light of Griswold and Eisenstadt, and indeed, Newman said, quoting Justice Brennan’s “bear or beget” sentence, the Eisenstadt opinion “may have anticipated the outcome of cases such as this.” Reflecting at some length upon the meaning of Griswold, Newman observed that “The opinion of Justice Douglas appears to posit the right of marital privacy as an absolute right, totally immune from state abridgement. The opinions of Justices Harlan, White and Goldberg, however, all concede that the right may be abridged if the state can demonstrate that its regulation is founded upon a sufficiently compelling state interest.” Thus, “It may well be that the right of a woman to decide whether or not to carry to term the fetus within her is a right immune from total governmental abridgement,” especially since “the right to an abortion is of even greater concern to the woman than the right to use a contraceptive protected in Griswold.” Like other jurists before him, Newman also concluded that “a fetus is not a person within the meaning of the Fourteenth Amendment” and “its capacity to become such a person does not mean that during gestation it is such a person.” Indeed, Newman noted, “it is difficult to imagine how a statute permitting abortion could be constitutional if the fetus had Fourteenth Amendment rights.” Hence he and Lumbard, over another angry dissent from Judge Clarie, granted the plaintiffs both declaratory and injunctive relief against the new statute, and Connecticut’s effort to obtain a stay of their order while the state appealed was refused by Justice Marshall.108
Two far less favorable decisions soon followed, as the Supreme Courts of first South Dakota and then Missouri each reversed lower court rulings and upheld their states’ antiabortion laws, but repeal activists remained preoccupied with the upcoming Michigan vote and the certainty of another large right to life effort in the 1973 New York legislature.109 NARAL purposely held its early October annual meeting in Detroit, and while a New York Times story on the gathering stated that “Pro-abortion forces believe they are on the verge of major victories that will soon make abortion on request available throughout much of the country,” New York City council member and outgoing NARAL president Carol Greitzer bluntly told her colleagues that repeal proponents, particularly in her home state, would have a difficult time even just preserving the achievements they had won to date. “The ultimate court decision we have been counting on has been delayed once again, and owing to the changing makeup of the court, the prognosis is less optimistic,” Greitzer cautioned. Politically, “we have done little to broaden our base,” and especially in New York “it is regrettable that more mature women who would make more of an impression on legislators have not been involved.” There would have to be “a real effort to recruit activists and bodies from other established organizations,” as well as “an end to divisiveness” and narrow-mindedness within the movement. “I deeply regret the chauvinism of some women’s groups,” Greitzer pointedly declared.
With reporters, Larry Lader and the Michigan activists struck a decidedly different tone, with Lader proclaiming that “This is the breakthrough year for abortion” and Jack Stack predicting that the Michigan referendum would pass with 61 percent support. NARAL executive director Lee Gidding emphasized that the Michigan vote would be “the most visible expression of public opinion in the nation,” and stressed that a victory would be “terribly significant.” Michigan repeal proponents had almost fifty thousand dollars, most of which had been contributed by the United Methodist Church, available for media advertising during the campaign’s final four weeks, and so far the opposing forces had seemed all but invisible. Political observers believed that the North Dakota repeal referendum stood little chance of passage, but Michigan would be vastly more important, and former state senator Lorraine Beebe, who had sponsored one of the earliest abortion bills, told one reporter that “It would set the movement back ten years if we lose.”110
In preparation for the October 11 rearguments of Roe and Doe in the Supreme Court, Sarah Weddington asked Harriet Pilpel to set up another moot court practice session the preceding afternoon for herself and Margie Hames, and Pilpel recruited Cyril Means, Joe Nellis, and St. Louis’s Frank Susman to take part. Weddington herself had not been looking forward to the reargument, in large part because of the degree of mystery that the summer news reports and rumors had created concerning the Court’s outlook, and several weeks earlier Sarah told one Texas audience that “I don’t think anybody can say what the outcome of the case will be.” The morning of the argument itself, Sarah and Ron Weddington had breakfast with Linda Coffee and Margie Hames, and when the time for the ten a.m. presentation came, Roy Lucas seated himself in the area reserved for members of the bar while Ron joined Linda and Sarah at the counsel’s table.111
In contrast to ten months earlier, Sarah this time was able to deliver almost half of her presentation without encountering any substantive or sustained questioning from the nine-member bench. She summarized the prior history of the case, noted the abortion safety statistics presented in Harriet Pilpel’s brief, reiterated the importance of Griswold, and directed the Court’s attention to the recent decision by the three-judge federal court in Connecticut. When she paused for a moment to recall the name of the Connecticut opinion’s author, it quickly became clear that some justices were already quite familiar with the ruling, for Potter Stewart politely interjected “Newman” to resolve Sarah’s dilemma. She noted the New York court’s Byrn decision when first Stewart and then Byron White asked her about the legal status of the fetus, and White pursued the question of whether a fetus should be regarded as a person with some persistence. Warren Burger broke in to ask whether Weddington would draw any distinction between the first and ninth month of gestation, and Sarah twice parried by indicating that Texas’s statute did not.
Harry Blackmun asked Sarah whether she placed more reliance upon a vagueness challenge or upon a Ninth Amendment claim, and when Sarah refused to elevate either one above the other, Blackmun shifted subjects and asked whether she had any comment on the Hippocratic oath, which Blackmun said had not been mentioned in any of “the voluminous briefs that we’re overwhelmed with here.” Sarah floundered briefly, observing that the Hippocratic oath did not speak to the question of constitutional rights, but Blackmun persevered, noting that the oath was “the only definitive statement of ethics of the medical profession.” Sarah replied that she had not cited it because it did not seem “pertinent to the argument we were making,” and Blackmun changed topics again, inquiring as to whether Sarah felt “there is any inconsistency” between the Court’s June decisions striking down the death penalty “and your position in this case.” Sarah responded that since the fetus had never been held to be a person, no inconsistency would occur, and Blackmun followed up by asking whether “your case depends primarily on the proposition that the fetus has no constitutional rights?” Sarah stumbled slightly, saying that even if the Court held that a fetus had some rights, “you would still get back into the weighing of one life against another,” and Byron White pounced on her immediately: “That’s what’s involved in this case, weighing one life against another?” “No,” Sarah quickly answered, adeptly explaining that that would be the situation only if the state could prove that a fetus was a constitutional “person.”
Potter Stewart followed up less combatively, but with the same basic question: “if it were established that an unborn fetus is a person,” “you would have almost an impossible case here, would you not?” Sarah replied frankly and directly that “I would have a very difficult case,” and Stewart responded “I’m sure you would.” Warren Burger inquired as to whether Weddington thought that Texas could constitutionally declare that fetuses were legal persons “after the third month of gestation,” and Sarah forthrightly answered that “I do not believe that the state legislature can determine the meaning of the federal Constitution. It is up to this Court to make that determination.” Sarah deflected a follow-up question from Burger with another reference to Griswold, and reserved the final four minutes of her time for subsequent rebuttal comments.
The argument on behalf of Texas this time was presented by Robert C. Flowers, Jay Floyd’s immediate superior and since 1968 the chief of the Texas Attorney General’s Enforcement Division. A graduate of Texas A&M University and the University of Texas Law School, Flowers would confess to interviewers years later that he had not thought it necessary to prepare any sort of outline in preparation for his appearance. Flowers began straightforwardly, declaring that “it is the position of the state of Texas that upon conception we have a human being, a person within the concept of the Constitution.” Stewart immediately inquired as to how one could know that a fetus was indeed a person, and Flowers answered that it was a question for legislatures to resolve. Stewart countered by asking whether Flowers knew of any case which had held that a fetus was a person, and when Flowers conceded that he did not but nonetheless tried to hold his ground, Stewart pointed out how the Fourteenth Amendment explicitly spoke of persons as being “born or naturalized.” Flowers in response tried to invoke the eighteenth-century English legal commentator William Blackstone, and Justice Blackmun immediately broke in to ask whether it was “not true that in Blackstone’s time abortion was not a felony?” Flowers agreed and sought to shift the discussion to the framers of the U.S. Constitution, but Blackmun pressed him to also acknowledge “that the medical profession itself is not in agreement as to when life begins,” and Flowers again acceded. Both Blackmun and White pursued him further, and only when Thurgood Marshall drew audience laughter by asking whether Texas could authorize the killing of a husband so as to benefit a wife’s health was Flowers able to utter two complete sentences in succession.
Flowers finally was able to return to his basic point that Texas did view fetuses as constitutional “persons.” Harry Blackmun immediately interjected that “Of course, if you’re right about that, you can sit down, you’ve won your case,” and Potter Stewart added “Except insofar as maybe the Texas abortion law presently goes too far in allowing abortions.” Flowers responded affirmatively, and Byron White rejoined the colloquy to ask whether “You’ve lost your case, then, if the fetus or the embryo is not a person, is that it?” Flowers answered “Yes, sir, I would say so,” and both Burger and Marshall joined White in pressing Flowers still further with regard to Texas’s view of the fetus. Stewart again raised the Fourteenth Amendment’s postbirth usage of “person,” and Marshall queried Flowers as to whether there was “any medical testimony of any kind that says that a fetus is a person as the time of conception.” Flowers cited a dissenting opinion from two years earlier in the Illinois abortion case, and after a question from Justice Rehnquist established that even that opinion had not spoken to “the moment of conception,” Potter Stewart returned again to the point he had made earlier: “Well, if you’re right that an unborn fetus is a person, then you can’t leave it to the legislature to play fast and loose dealing with that person. In other words, if you’re correct in your basic submission that an unborn fetus is a person, then abortion laws such as that which New York has is grossly unconstitutional, isn’t it?” Flowers agreed—“That’s right, yes”—and Stewart reiterated that fact twice more before Harry Blackmun, and then Rehnquist, confronted Flowers with several historical questions about the nineteenth-century origins of the Texas law. When Flowers told Blackmun that he did not know what motives had underlain the enactment of such statutes, the ostensibly helpful Stewart volunteered that wasn’t it the case that “they were enacted to protect the health and lives of pregnant women because of the danger of operative procedures generally around that time?” Flowers once again readily agreed—“I’m sure that was a great factor, your honor”—and as his thirty minutes expired, Sarah Weddington returned to the podium for her final remarks.
When Sarah began her rebuttal argument by highlighting how even Flowers had acknowledged that no one could prove when “life” begins, Justice White doggedly inquired as to whether Sarah thus meant that a state could not protect a fetus even during the later stages of pregnancy. Sarah persistently avoided giving a direct answer, and Chief Justice Burger asked her whether the Court could preserve the Texas statute by reconstruing it in light of Vuitch. Sarah noted that Vuitch had not dealt with the right to privacy, and then spoke to Blackmun’s earlier question by pointing out that the Hippocratic oath “was adopted at a time when abortion was extremely dangerous to the health of the woman.” Moving toward a summation, Sarah emphasized that “We are not here to advocate abortion. We do not ask this Court to rule that abortion is good or desirable in any particular situation. We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual” and that “she has a constitutional right to make that decision for herself.” Byron White suggested that this meant “you are urging upon us abortion on demand,” and Sarah gave an appropriately measured response, saying she was urging that Texas’s statute was unconstitutional and citing Justice Brennan’s crucial sentence from Eisenstadt as powerful support. Chief Justice Burger noted that her time had expired, and with the argument in Roe v. Wade now complete, Margie Hames and Dorothy Beasley immediately stepped forward to begin the reargument of Doe v. Bolton.
Margie Hames commenced her presentation by stressing that the Doe plaintiffs were “relying principally on this Court’s decision in Griswold” more so than on any particular constitutional provision. She described once again Doe’s challenge to the various provisions of the Georgia reform statute, and particularly the hospitalization requirement that the Atlanta panel had upheld, and during the first half of her presentation she was confronted with almost no questions from the nine justices. Blackmun and Lewis Powell eventually asked several questions about the hospitalization issue and both Rehnquist and Burger posed additional queries about medical self-regulation. Byron White unsuccessfully sought a direct answer to the question of whether or not a state could impose a twenty-week limit, and Hames reserved three minutes of her time for rebuttal comments before Dorothy Beasley stood up to deliver the argument on behalf of Georgia Attorney General Arthur K. Bolton.
Beasley began by investing several minutes in a long and unproductive colloquy with William Rehnquist about jurisdiction, and then Warren Burger posed a series of questions concerning tonsillectomies. Thurgood Marshall took issue with Beasley’s characterization of the fetus, saying “I have great problems with this ‘living being’ point,” and when Beasley sought to turn the constitutional tables on the plaintiffs by insisting that the fetus ought to have a Ninth Amendment right to be “let alone,” Marshall retorted that “You can’t recognize the Ninth Amendment for the fetus and not recognize the Ninth Amendment for the mother, can you?” Harry Blackmun commented that he had asked Beasley ten months earlier at the first argument why the Georgia statute failed to include an incest exception, and while Beasley time and again returned to her basic emphasis on Georgia’s primary interest in fetal life, her distinctively keen and high-pitched voice increasingly seemed to take on a touch of anger as the argument progressed.
Precisely at noontime the Court adjourned for lunch, and when the argument resumed at one p.m. for the final ten minutes of Beasley’s presentation, one questioner inquired as to whether different legal standards could be imposed subsequent to the first trimester of pregnancy. When Beasley again reiterated that “If there’s anything emanating from the Ninth Amendment, it’s the fetus’s right to be left alone,” Chief Justice Burger seemed to disagree, and as Beasley’s time expired, Margie Hames returned to the podium for a final few moments of remarks that were almost exclusively devoted to a colloquy with Justice Blackmun about the Hippocratic oath. At one fourteen the presentation of Doe v. Bolton officially concluded, and without delay the attorneys began to ponder just what the morning’s proceedings portended for their chances.112
Sarah and Ron Weddington had lunch with Linda Coffee, Marsha King, and Texas supporter Ruth Bowers, and while Linda was more optimistic than she had been four hours before, Sarah was decidedly less happy than she had been after the initial argument ten months earlier. Once again Sarah had encountered no major problems while delivering a solid and occasionally eloquent performance, but the far less intense questioning from the justices had been unsettling rather than encouraging, and made her think that “most of them already had their minds made up.” Harriet Pilpel had told Sarah as they were leaving the Court that she believed they had a good chance of winning, but as Sarah and her colleagues counted the possible votes, the likely outcome looked very close indeed. Neither Warren Burger nor certainly Byron White had sounded like prospective supporters, and neither William Rehnquist nor Lewis Powell had said anything that was either encouraging or particularly revealing. Sarah and Ron had a sympathetic friend, a 1970 University of Texas Law School graduate, who was clerking for Powell and working on Roe and Doe, but that alone was no reason to consider Powell as a likely backer. Unless at least one of those four did turn out to be supportive, all five of the other justices—Blackmun, Stewart, Brennan, Marshall and Douglas—would be necessary in order to prevail. “I may be wrong,” Sarah wrote Ginny Whitehill several days later, “but I think we are going to win this case. Not sure what grounds or how good the opinion will be, but really think we’ll win. However, I’m worried about the Georgia case. The Court may just uphold facility restrictions, etc.”
In contrast to Sarah’s mixed expectations, however, Margie Hames left the hearing significantly encouraged, both because she had sensed a distinctly favorable shift in the tone of Warren Burger’s questions and because in her judgment Lewis Powell had also come across as a probable supporter. “I came away very optimistic,” Hames explained four months later. “I really felt like we were going to pick up Powell, and I felt like we were going to pick up Burger.” A markedly less sanguine assessment, however, came from Roy Lucas, who—knowing full well Cyril Means’s proclivity for sharing with others the stories and letters that came his way—sent Means a decidedly disparaging evaluation of the Roe and Doe presentations. The high court, Lucas said, “must think the abortion movement (on both sides) hasn’t a competent attorney in its ranks. By any standard, the arguments were amateurish and uninformed, even worse than last December. Hopefully the Court will do as it has done before and perceive the cases in a more sophisticated light than they were presented. A number of professional federal appellate advocates were in the audience, and you should have heard their remarks. The respect for the women’s movement was set back ten years. Any law student who had skimmed” one or another standard treatise “would have done better,” Lucas sarcastically concluded. And just as Roy Lucas might have expected, Cyril Means wasted no time whatsoever in sending a copy of Lucas’s letter to Sarah Weddington. “Thank goodness I’ve heard good things from others,” Sarah told Ginny Whitehill after reading Lucas’s deprecations. “Considering the source,” she added, “this ‘rolls like water off a duck’s back.’”113
Once again, however, the reactions of the interested litigators—whether canny or just catty—would count for very little compared to the reactions of the nine men who actually would decide both Roe and Doe. When the justices convened for their private conference on the two cases, they considered the cases in tandem rather than sequentially, and Chief Justice Burger began the discussion by frankly stating that the Texas statute was “bad” and “too restrictive.” Burger explained that he was uncertain as to whether he could support voiding it on vagueness grounds, as Blackmun’s earlier draft opinion had done, but Burger was sure that a state could not by means of a criminal statute aimed at doctors restrict abortions to only those which would save a woman’s life. Doe, however, was “much more complex,” Burger said, because “a state has a right to legislate” with regard to abortions, as the Court previously had indicated in Vuitch. Additionally, Burger stated, “fetal life is entitled to protection at some point.”
William O. Douglas concisely said that he agreed with Burger about Texas and also agreed with the Roe and Doe drafts that Blackmun had circulated back in May. Bill Brennan stated that he too endorsed both of Blackmun’s drafts, and Potter Stewart announced that his position also remained the same as before. Stewart added, however, that it was essential for the Court to deal with the claim that a “fetus is not a person within [the] 14th Amendment,” since both the Connecticut decision and the Byrn case in New York had confronted the issue. “That doesn’t mean [a] fetus has no rights or can’t be given them by the State,” Stewart declared, but he also could not say that the Texas law was void for vagueness. Stewart explained that he very much liked Jon Newman’s reasoning in the Connecticut case, and that constitutionally the Court should not rest upon the Ninth Amendment. “It’s a 14th Amendment right, as John Harlan said in Griswold.”
Byron White agreed that a fetus was not a “person” under the Fourteenth Amendment, but emphasized that this did not end either case, for the Court had to weigh the woman’s Fourteenth Amendment right against the state’s interest in protecting the fetus. “I’m not going to second-guess state legislatures in striking the balance in favor of abortion laws.” Unless states were to be barred from prohibiting any abortions, including those based simply on the “personal convenience” of the mother, the Georgia and Texas statutes should not be held facially void. “Why cannot a state, at least after a certain period of gestation, say ‘no abortion’ or require cesarean operations for women who rest solely on convenience? No women in these cases assert injury to life or health.” He would vote to uphold the Georgia statute, White said, and would pass in the Texas case, for he could not agree that the Texas law was vague.
Thurgood Marshall noted that in Texas a “woman who aborts herself is in the clear” and that “no doctor would perform” an abortion when a pregnancy was well advanced. Marshall indicated that he agreed with Potter Stewart regarding the fetus, and would stand by the outcomes that Blackmun had reached five months earlier.
Harry Blackmun himself offered the lengthiest remarks at what was otherwise an extremely concise conference. “I am where I was last spring,” Blackmun told his colleagues, and “I’d make Georgia the lead case.” He had revised both the Texas and Georgia opinions from where they had stood in May, and he reviewed point by point all the preliminary issues of jurisdiction, standing, and mootness that would have to be dealt with in the final decisions. Blackmun said he wanted to include a discussion of the history of abortion in the opinions, and that constitutionally he would rest upon the Fourteenth Amendment, not the Ninth. During pregnancy, Blackmun went on, “there is a point where other interests are at stake [and] where [a] state can regulate.” He added that he would hold invalid the Georgia hospitalization requirement, although the opinion would indicate that states could require abortions to be performed in licensed facilities, and the Doe opinion would also strike down Georgia’s residency requirement and the provision mandating prior approval by multiple doctors and a hospital committee.
Unlike the Georgia law, Blackmun continued, the Texas act was void for vagueness, and Vuitch could indeed be reconciled with such a holding. He would make Doe rather than Roe “the leading opinion,” but Blackmun emphasized to his colleagues that “if [the] Texas act falls, abortion laws in a majority of our states fall.” Hence, “we might hold [the actual] mandate for awhile,” Blackmun explained, since he “wants to avoid complete disorganization.”
The eighth justice, Lewis Powell, had privately made up his mind about Roe and Doe back in September, several weeks before the oral arguments, after giving both cases considerable thought toward the end of the summer recess. Upon returning to Washington, Powell told Larry Hammond, the clerk who was helping him with the two cases, that he wanted to have lunch at The Monocle, Capitol Hill’s premier restaurant, to discuss Roe and Doe. Hammond pessimistically concluded that the fancy setting was intended as recompense for what Powell knew Hammond would regard as bad news, and hence it “hit me like a ton of bricks,” Hammond later recalled, when the quiet and gentlemanly Powell began the lunch by saying, “Larry, I’m inclined to affirm” the Dallas and Atlanta panels’ decisions. Neither Hammond nor Powell’s other clerks had told their friends in other chambers about Powell’s stance prior to the conference, and hence it came as news to almost all of his colleagues when Powell began his conference remarks by saying that he was “basically in accord with Harry’s position” except for being concerned about allowing a doctor to rely on “economic considerations” or other such factors “unless they relate to health.” Powell said that he thought Roe “should [be] the lead case” and that he would decide it not on vagueness grounds but on the more basic issue. Powell’s comment prompted Blackmun to volunteer that he would be “willing to bypass vagueness” and put the Texas and Georgia cases onto much the same grounds. That proposal met with no objections, and the conference discussion came to a quick end as Bill Rehnquist, the final justice to speak, said simply that he agreed with Byron White.
This time, in contrast to ten months earlier, the conference’s outcome, especially in light of Blackmun’s decisive willingness to accede to Lewis Powell’s crucial suggestion and move beyond a vagueness holding in Roe, was quite susceptible to intelligible vote-counting: with Douglas, Brennan, Stewart, Marshall and Powell all expressing basic agreement with Blackmun, there were definite six-vote majorities for deciding both Roe and Doe, and in Roe it had sounded as if there was a seventh vote—Warren Burger—as well. Byron White and Bill Rehnquist had plainly indicated their determination to dissent from a decision voiding the Georgia statute, but their stance in Roe remained uncertain, as did Warren Burger’s in Doe. Thus Harry Blackmun left the conference knowing that he would be revising his opinions on behalf of at least a seven-justice majority in one case and a six-justice one in the other. Equally important, because of both Blackmun’s own resolute commitment and Lewis Powell’s clear stance, the conference discussion also established that none of the fears that William O. Douglas and Potter Stewart had entertained five months earlier would actually come to pass.114
Looking back on those Roe and Doe discussions and his own momentous role six years later, Lewis Powell recalled that the decision had not been difficult. Griswold, he related, had protected “a personal and private relationship that should be free from state regulation,” and Roe and Doe presented the same basic question. “The concept of liberty was the underlying principle of the abortion case—the liberty to make certain highly personal decisions that are terribly important to people,” Powell explained. “It is difficult to think of a decision that’s more personal or more important to a pregnant woman than whether or not she will bear a child.”115
Following the conference discussion, five weeks passed before Harry Blackmun circulated revised opinions, and while external events did not alter the Court’s course, for repeal activists those intervening developments raised the judicial stakes even higher. Most public attention with regard to abortion was focused on Michigan, where opponents of the November 7 repeal referendum first began broadcasting television ads against the measure only on October 13. Six days later another Detroit News statewide poll showed that 56 percent of respondents continued to support the proposal, but during the ensuing two weeks, as the thirty-second spots purchased by “Voice of the Unborn” continued to appear, public sentiment started to shift significantly, and when the News on November 3 publicized the results of a final poll that had been completed on October 31, the numbers revealed a startling turnaround: only 42 percent of respondents now backed the twenty-week repeal measure, and the proportion of opponents had shot up from 40 to 54. One month earlier, repeal activist Dr. Jack Stack had predicted a 61 percent victory when the ballots were counted, but when the votes were actually tallied late on the night of November 7, the statewide result was painfully ironic: only 39 percent of voters had supported repeal, and a whopping 61 percent majority had voted against it. In North Dakota the far less heralded repeal referendum went down to an even more overwhelming 77 percent to 23 percent defeat, but it was the Michigan result—and the considerable importance that repeal proponents all across the country had attached to it—that drew the most attention. Texas’s Ginny Whitehill wrote to Stack mourning the “tragic outcome,” and NARAL’s Larry Lader privately confessed that it was “a terrible blow.” Stack himself gallantly conceded that “Our opponents waged a fantastically sophisticated political campaign in the last three or four weeks” and he acknowledged how antiabortion forces had mustered “a tremendous grass-roots organization that we couldn’t begin to match.” ASA executive director Jimmye Kimmey, however, offered a far more specific analysis of why the early poll numbers had turned out to be so highly misleading. “The main thing going for the opposition,” she explained, “was the 20-week limit,” for evidence now suggested that that ceiling “was perceived as too late by a significant number of those who had, without at the moment thinking about the time limit, responded ‘Yes’ to the pollsters’ question.”116
The same day that the Michigan and North Dakota measures were going down to defeat, Sarah Weddington won election to the Texas house by a margin of almost fifty thousand votes. Both she and other Texas activists began making plans to champion a repeal bill in the 1973 legislature if the Supreme Court did not void the existing Texas law, and Ginny Whitehill pessimistically told one friend that the Texans were “still holding out a ray of hope for the Supreme Court to come through.” The legislative prospects for a repeal bill, moreover, were already rather doubtful, and Whitehill ruefully confessed to one ally that “we know well that the opposition is gaining strength and momentum.”117
Upcoming political struggles were even more of a concern for New York abortion activists, who had been increasingly apprehensive about their state’s 1973 legislative session even before the stunning Michigan results were announced. Both PPFA and New York City Planned Parenthood leaders charted a major political outreach effort to defend the 1970 law, but officers of Planned Parenthood affiliates in such upstate cities as Albany and Schenectady vociferously objected to the organization taking a highly visible position on the subject. Albany’s president warned that the affiliates’ fund-raising prospects would be badly harmed if PPFA failed to “maintain a low profile on the abortion issue” and the Schenectady president reported that “Our Board has emphasized repeatedly that we should not jeopardize the rest of the services that we want to provide by having our community image locked in with the abortion hassle.” Some New York activists feared that the greatest threat to the 1970 law would arise if President Nixon—whose willingness to work hand-in-glove with New York abortion opponents had already been proven—could entice Governor Rockefeller to resign in order to accept some irresistible appointment, thus placing antiabortion Lieutenant Governor Malcolm Wilson in a position to sign rather than veto a legislatively approved revocation bill. That worry was not openly broached when Rockefeller met privately with PPFA president Alan Guttmacher—still robust at age seventy-four—to discuss the upcoming battle, but Rockefeller did volunteer that he had “felt very lonely” when he vetoed the earlier revocation measure “because there was no public evidence of grass roots support for his stand.”118
In late November abortion activists received yet another reminder of how perilous their political position now seemed when passage of an extremely restrictive new antiabortion law in Pennsylvania—allowing only those abortions judged necessary to save a woman’s life by three doctors—was averted only by Democrat Milton Shapp’s gubernatorial veto. Antiabortion forces had defeated an amendment that would have added a rape and incest exception to the bill, and only Pennsylvania’s unusually stiff constitutional requirement of 75 percent support in both houses of the legislature prevented Shapp’s veto from being overridden.
Just as worrisome to some activists as the New York, Michigan, and Pennsylvania evidence that antiabortion forces now had repeal advocates badly outgunned despite the countervailing national public opinion poll numbers was the increasingly prominent usage that right to life leaders were making of visually powerful pictures of aborted fetuses. NARAL’s Larry Lader notified his colleagues that one television broadcast, a November 29 PBS show featuring black activist Jesse Jackson and three other abortion opponents, was “a disaster to the abortion movement,” largely because one opponent, Marjory Mecklenburg of Minnesota, had been able to dominate the program both with fetal pictures and with what she said was a tape recording of a fetus’s heartbeat. The broadcast amounted to “the most damaging national TV coverage in our history,” Lader declared, in part because Mecklenburg represented “perhaps our most dangerous opponent, a good-looking woman.” Two weeks later another PBS show, “The Advocates,” permitted right-to-life representatives to show a series of fetal slides, and Lader admitted that “Their impact was overpowering.” He advised that repeal proponents forego media appearances in which opponents would be able to use such pictures and tapes, and advocated that “We must refuse to give equal time in debate to a minority point of view whenever such a tactic is possible.” Lader frankly conceded that “the abortion movement has been increasingly pushed to the defensive in recent months,” and he acknowledged that “the opposition now employs superb strategy and organization.” In short, he told his allies, “We are being steam-rollered.” ASA’s Jimmye Kimmey offered only a slightly less pessimistic outlook to the Associated Press. “Now that I have seen the fierceness of the opposition, I no longer feel if we got a favorable ruling” from the Court that the struggle “would be over.” “Instead of it being the end,” it would represent only “the beginning of a tough new era.”119
One of the few pieces of good news for abortion activists during the final two months of 1972 was late November’s 4 to 3 decision by the California Supreme Court striking down that state’s pioneering 1967 reform statute on the grounds that one of the crucial phrases in the law’s maternal health exception—would continuing a pregnancy “gravely impair” a woman’s health—was unconstitutionally vague. The California majority expressly avoided any right to privacy ruling, and upheld the 1967 law’s hospitalization requirement, but California activists nonetheless welcomed the decision as “a significant milestone” that officially made “therapeutic abortion at the request of the woman a reality in California.” Washington state’s best-known provider, Dr. A. Frans Koome, suddenly faced a criminal conviction for performing an abortion on a sixteen-year-old woman in violation of a court’s order, but many other judicial matters remained essentially on hold, as lower courts waited for a definitive signal from the U.S. Supreme Court. Indeed, several weeks after the California ruling, the Minnesota Supreme Court, faced with journalistic inquiries as to why it had not resolved the appeal of Jane Hodgson’s conviction that had been presented more than a year earlier, actually issued a press release saying that it was reserving decision until the U.S. Supreme Court handed down opinions in Roe and Doe, which had originally had been argued just four days after Hodgson.120
On November 22, 1972, Harry Blackmun circulated to all eight of his colleagues a new draft opinion in Roe v. Wade. “This has proved for me to be both difficult and elusive,” he explained in a cover memo.
In its present form it contains dictum, but I suspect that in this area some dictum is indicated and not to be avoided.
You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.
Blackmun said that he had “attempted to preserve Vuitch in its entirety,” even though that might create some complications, and he ended his memorandum on a decidedly self-conscious and subdued note, apologizing for what he termed both “the rambling character” of the draft “and for its undue length. It has been an interesting assignment. As I stated in conference, the decision, however made, will probably result in the Court’s being severely criticized.”
Blackmun’s forty-eight-page Roe draft, and a considerably shorter revision of Doe that he circulated later that same day, definitely reflected the research Blackmun had performed over the preceding summer. The Roe opinion, after dealing with the case’s jurisdictional and procedural issues, offered an extended survey of the history of abortion laws and practices reaching back to ancient times, including the Hippocratic oath, and then moved on to survey professional attitudes toward abortion law liberalization over the preceding fifteen years. Along with the draft, Blackmun sent an additional note to Bill Brennan, the Court’s only Roman Catholic member, highlighting the fact that in the historical section of the opinion “I have referred to the development of the canon law and to the position of the Catholic Church. I personally would very much appreciate your paying particular attention to these passages. I believe they are accurate factually, but I do not want them to be offensive or capable of being regarded as unduly critical by any reader. Your judgment as to this will be most helpful.”
Most importantly of all, as Blackmun had emphasized in his cover letter, the Roe draft, particularly in its two final pages, drew an extremely significant line at the end of the first trimester of pregnancy. During that first three months, Blackmun’s opinion held, a state “must do no more than to leave the abortion decision to the best medical judgment of the pregnant woman’s attending physician.” However, “For the stage subsequent to the first trimester, the State may, if it chooses, determine a point beyond which it restricts legal abortions to stated reasonable therapeutic categories that are articulated with sufficient clarity so that a physician is able to predict what conditions fall within the stated classifications.”121
Reactions to Blackmun’s two circulations took several days in coming, but when they did, they were generally quite supportive. William O. Douglas endorsed both opinions and told Blackmun that he would file a revision of his earlier Doe statement as a concurrence. Douglas explained that he still believed the Court should uphold rather than dismiss Dr. Hallford’s standing in Roe, but he stressed that “this is a mere fly speck in the total case. You have done an excellent job.” Potter Stewart commended Blackmun for having done “an admirably thorough job” and expressed “basic agreement with the results,” while adding that he too might file a concurring opinion. Byron White confessed that he had been “struggling with these cases,” and would “probably end up concurring in part and dissenting in part.” Three days later Bill Rehnquist wrote that “I am about where Byron said he was” and that he also would “probably concur in part and dissent in part.” Lewis Powell informed Blackmun first in person and then in writing that he was “generally in accord with your fine opinions,” and no doubt would formally join once he had the time to offer a few suggestions.
Along with Warren Burger, the only other members of the Court from whom Blackmun did not formally hear in the first two weeks following his November 22 circulations were Bill Brennan and Thurgood Marshall. Brennan and Marshall were two of Blackmun’s most expressly declared supporters, and their formal silence was in large part a reflection of how close an interaction two of Blackmun’s new clerks, Randy Bezanson and Jim Ziglar, had developed with their Marshall and Brennan counterparts concerning Roe and Doe. Within Brennan’s chambers, the two cases were now the responsibility of Bill Maledon, a University of Notre Dame Law School graduate who had published a senior year paper in Notre Dame’s law journal arguing that the “unborn child” had an inalienable right to life and insisting that “abortion has absolutely nothing to do with marital privacy.” Even one of Blackmun’s clerks had serious doubts about the constitutional status of Roe and Doe, doubts that led to lively intellectual exchanges within the Blackmun chambers, but Bill Maledon’s deep discomfort with abortion was well-known by any number of fellow clerks, and one sympathetic colleague believed that Maledon was “under a considerable tension” in trying to assist Justice Brennan with Blackmun’s Roe and Doe drafts.
In Thurgood Marshall’s chambers, the new clerk assigned to the abortion cases, Mark Tushnet, had no hesitations about the Blackmun circulations, and told Marshall that the Roe opinion was “one the Court can be proud of.” Tushnet recommended that Marshall join it “without reservation,” but he also pointed out that the final two pages of Blackmun’s draft could benefit from some tightening and clarification, particularly with regard to how it referred to a “compelling” state interest in regulating post-first trimester abortions.122
Marshall made no formal response to Blackmun’s circulations, but sometime in the second week of December, after further conversations among the clerks from the three allied chambers, Bill Brennan personally raised with Blackmun a concern that he had also discussed with Marshall. In response, Blackmun on December 11 circulated to all of his colleagues a two-page memo that offered some far more extensive thoughts about the crucial bench mark he had employed in the opinions and which he had previously highlighted in his initial cover memo:
One of the members of the Conference has asked whether my choice of the end of the first trimester, as the point beyond which a state may appropriately regulate abortion practices, is critical. He asks whether the point of viability might not be a better choice.
The inquiry is a valid one and deserves serious consideration. I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) and because most medical statistics and statistical studies appear to me to be centered there. Viability, however, has its own strong points. It has logical and biological justifications. There is a practical aspect, too, for I am sure that there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them, or, indeed, has passed.
I suspect that few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation. What we are talking about, therefore, is the interval from approximately 12 weeks to about 28 weeks.
One argument for the earlier date is that the state may well be concerned about facilities and such things as the need of hospitalization from and after the first trimester. If the point of viability is selected, a decision of this kind is necessarily left to the attending physician.
I would be willing to recast the opinions at the later date, but I do not wish to do so if it would alienate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum.
I might add that some of the district courts that have been confronted with the abortion issue have spoken in general, but not specific, terms of viability. See, for example, Judge Newman’s observation in the last Abele v. Markle decision.
May I have your reactions to this suggestion?
Even before the day was out, William O. Douglas replied simply that “I favor the first trimester, rather than viability,” but the following day Thurgood Marshall signed and sent to Blackmun a crucially important letter that Mark Tushnet, after extensive conversations with Bill Maledon from Brennan’s chambers, had drafted for the justice’s approval. The clerks felt that Brennan’s prior suggestions to Blackmun might make an initial letter from Marshall less obtrusive, and while Marshall made only one insignificant change in Tushnet’s typescript, its content was as momentous as anything that had been written during Roe’s entire development. “Dear Harry,” Marshall began,
I am inclined to agree that drawing the line at viability accommodates the interests at stake better than drawing it at the end of the first trimester. Given the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion, I fear that the earlier date may not in practice serve the interests of those women, which your opinion does seek to serve.
At the same time, however, I share your concern for recognizing the State’s interest in insuring that abortions be done under safe conditions. If the opinion stated explicitly that, between the end of the first trimester and viability, state regulations directed at health and safety alone were permissible, I believe that those concerns would be adequately met.
It is implicit in your opinion that at some point the State’s interest in preserving the potential life of the unborn child overrides any individual interests of the women. I would be disturbed if that point were set before viability, and I am afraid that the opinion’s present focus on the end of the first trimester would lead states to prohibit abortions completely at any later date.
In short, I believe that, as the opinion now stands, viability is a better accommodation of the interests involved, but that the end of the first trimester would be acceptable if additions along the lines I have suggested here were made.123
The next day Bill Brennan sent Harry Blackmun a similar but considerably longer letter following up on the verbal suggestions he had offered prior to Blackmun’s latest memo. Brennan emphasized that he was “in basic agreement with” Blackmun’s drafts, and thanked his junior colleague for “giving second thoughts to the choice of the end of the first trimester as the point beyond which a state may appropriately regulate abortion practices. But if the ‘cut-off’ point is to be moved forward somewhat, I am not sure that the point of ‘viability’ is the appropriate point, at least in a technical sense.” Viability’s appropriateness as the beginning point for state regulation was questionable, Brennan explained, because “if we identify the state’s initial interests as the health of the woman and the maintenance of medical standards, the selection of ‘viability’ … as the point where a state may begin to regulate in consequence of these interests seems to me to be technically inconsistent” since viability focused upon the fetus rather than on the woman. “Thus considerations of ‘viability,’” Brennan went on, “arise at a point in time after the state has asserted its interest in safeguarding the health of the woman and in maintaining medical standards.”
“I have no objection,” Brennan stated, “to moving the ‘cut-off’ point (the point where regulation first becomes permissible) from the end of the first trimester (12 weeks) as it now appears to a point more closely approximating the point of viability (20 to 28 weeks), but I think our designation of such a ‘cut-off’ point should be articulated in such a way as to coincide with the reasons for … creating such a ‘cut-off’ point.” Brennan suggested that “rather than using a somewhat arbitrary point such as the end of the first trimester or a somewhat imprecise and technically inconsistent point such as ‘viability,’ could we not simply say that at that point in time where abortions become medically more complex, state regulation—reasonably calculated to protect the asserted state interests of safeguarding the health of the woman and of maintaining medical standards—becomes permissible.” Then the opinion could explain, Brennan continued, “that this point usually occurs somewhere between 16 and 24 weeks (or whatever the case may be), but the exact ‘cut-off’ point and the specifics of the narrow regulation itself are determinations that must be made by a medically informed state legislature. Then we might go on to say that at some later stage of pregnancy (i.e., after the fetus becomes ‘viable’) the state may well have an interest in protecting the potential life of the child and therefore a different and possibly broader scheme of state regulation would become permissible.” In other words, Brennan concluded, “our reasons for the choice of a ‘cut-off’ point (which I think we all agree must be found) should be consistent with the state interests which allow the states to select a ‘cut-off’ point.”124
The same day that Blackmun received Brennan’s long thought-piece, Warren Burger sent him a brief letter saying that he had “more ‘ploughing’ to do” on Blackmun’s drafts and asking whether the opinions ought to “deal with whether husbands as such or parents of minors have ‘rights’ in this area.” The following day, Potter Stewart wrote Blackmun to say that
One of my concerns with your opinion as presently written is the specificity of its dictum—particularly in its fixing of the end of the first trimester as the critical point for valid state action. I appreciate the inevitability and indeed wisdom of dicta in the Court’s opinion, but I wonder about the desirability of the dicta being quite so inflexibly “legislative.”
My present inclination would be to allow the States more latitude to make policy judgments between the alternatives mentioned in your memorandum, and perhaps others.
Stewart added that he had hoped to have a concurring opinion prepared by now, and would certainly circulate something by early January.
On December 15, Harry Blackmun sent yet another memo to all of his colleagues:
I appreciate the helpful suggestions that have come to me in response to my memorandum of December 11. I now feel somewhat optimistic that the issues are in focus and that an agreement in some general areas may be in prospect.
With your permission, I would like the opportunity to revise the proposed opinions in light of these suggestions. I have in mind associating the end of the first trimester with an emphasis on health, and associating viability with an emphasis on the State’s interest in potential life. The period between the two points would be treated with flexibility. I shall try to do this revision next week and circulate another draft before the end of the year. It is my earnest hope, as you know, that on this sensitive issue we may avoid excessive fractionation of the Court, and that the cases may come down no later than the week of January 15 to tie in with the convening of most state legislatures.125
Six days later, on December 21, Blackmun circulated his revised and all-but-final drafts of both Roe and Doe along with a brief cover memo. Blackmun explained that “I have endeavored to accommodate the various views expressed to me orally or by letter,” and highlighted how the principal change he had made occurred in the latter portion of the Roe opinion. “Here I have tried to recognize the dual state interests of protecting the mother’s health and of protecting potential life. This, I believe, is a better approach than that contained in the initial memorandum. I have tried to follow the lines suggested by Bill Brennan and Thurgood.” Blackmun noted that in response to Burger’s query, “the rights of the father” were now mentioned in a footnote, but he acknowledged that “this will not be very satisfying” and concluded by observing that he was “somewhat reluctant to try to cover the point in cases where the father’s rights, if any, are not at issue. I suspect there will be other aspects of abortion that will have to be dealt with at a future time.”
Blackmun’s colleagues appreciated that his revisions had fully—and sometimes quite precisely—responded to their suggestions. The very next day William O. Douglas formally joined both the Roe and Doe opinions, followed immediately after Christmas by Thurgood Marshall, Bill Brennan, and Potter Stewart. “I think your most recent circulations are even better than the original ones, and I was again greatly impressed with the thoroughness and care with which you have accomplished a difficult job,” Stewart told Blackmun. Stewart added that he had now decided to dispense with a lengthy concurrence in place of a much briefer one, and before New Year’s both Stewart and Douglas distributed their concurrences to their colleagues. Early in January Lewis Powell formally added his support, saying that he too was “happy with the revisions” and commending Blackmun for the “exceptional scholarship” of the opinions.126
On Thursday, January 11, 1973, both Byron White and Bill Rehnquist circulated initial copies of their brief individual dissents, but Blackmun’s desire to announce the decisions sometime during the third week of January—Wednesday, January 17, had been tentatively scheduled—was foiled by Warren Burger’s continuing inability to decide how he was going to come down in the two cases. Relations between Burger and some of his colleagues, particularly Potter Stewart, had remained decidedly strained throughout the early months of the Court’s 1972–1973 term, and only toward the end of the second week in January did Burger finally indicate that he would join Blackmun’s opinions in both Roe and Doe while filing an additional statement of his own. On January 16 Burger wrote Blackmun to say that he hoped to circulate a brief concurrence within a day or two and that Roe and Doe hence could be scheduled for announcement on Monday, January 22.
Soon after Burger’s note arrived, Harry Blackmun distributed new prints of the Roe and Doe opinions to all of his colleagues along with a memorandum suggesting that public release of the two opinions be accompanied by an unprecedented eight-page explanatory statement. Blackmun explained that “I anticipate the headlines that will be produced over the country when the abortion cases are announced,” and “Accordingly, I have typed out what I propose as the announcement from the bench in these two cases,” an announcement that traditionally amounted to abbreviated summary excerpts from the opinions themselves and which never before had been issued or preserved in any written form. In Roe and Doe, however, Blackmun recommended, “I suggest that copies of this be given” to any reporters who wanted one, for “It will in effect be a transcript of what I shall say” and might help keep the press from “going all the way off the deep end” in reporting the news of the decisions.
Blackmun’s proposed announcement noted the Court’s realization that the abortion issue “is a most sensitive, emotional and controversial one,” and acknowledged how “we are fully aware that, however the Court decides these cases, the controversy will continue.” It underscored that “abortion is essentially a medical decision,” and highlighted that “Fortunately, the decisions come down at a time when a majority of the legislatures of the states are in session.” Speaking in the first person on the statement’s final page, Blackmun said that “I fear what the headlines may be, but it should be stressed that the Court does not today hold that the Constitution compels abortion on demand.” Neither was the Court saying, Blackmun added, “that a pregnant woman has an absolute right to an abortion.” Instead, “for the first trimester of pregnancy,” the opinions “cast the abortion decision and the responsibility for it upon the attending physician.”
Lewis Powell told Blackmun that he thought the “excellent” statement “will help contribute to the understanding of the Court’s decision,” but the far more experienced Bill Brennan quickly convinced Blackmun that any such written announcement, no matter how well done, would likely create more problems than it would solve, for some people no doubt would treat the statement as a formal extension of the opinions themselves. Plans for such a release were abandoned, and when Warren Burger on Thursday the 18th finally distributed a three-paragraph concurrence, Roe v. Wade and Doe v. Bolton were set for announcement at ten a.m. on Monday morning, January 22, 1973.127
Outside of the Court, almost no one knew how imminent the decisions now were. In Texas, Sarah Weddington, who had just been sworn in as a member of the state house, formally introduced a repeal bill on January 19. Asked by one reporter what she thought the chances for success were in the Supreme Court, Sarah replied that she had “no idea what will happen.” She added that “It could go either way,” and Ginny Whitehill warned NARAL’s Lee Gidding that “even if the Supreme Court comes through, I think we will have to be active to prevent fetal bills or whatever.”
Perhaps the one person outside the Court’s official family who did know what was about to happen was David Beckwith, a young Time magazine staff member who had learned the essence of the upcoming decisions after approaching any number of clerks for off-the-record comments. Beckwith had attended the University of Texas Law School at the same time as one of Powell’s clerks, and the Powell clerk, knowing that Roe and Doe were listed for announcement on January 17 and hence would be covered in Time’s next issue, spoke “on background” with Beckwith about the upcoming decisions, unaware that Warren Burger’s tardiness would cause the cases to be held over into the following week. When Burger’s delay meant that Beckwith’s superiors at Time had the makings for a scoop rather than some redundant background material, those editors went ahead and prepared a two-page story entitled “Abortion on Demand” for the Monday issue that appeared on newsstands just a few hours before Roe and Doe actually were announced. “Last week Time learned,” the article boasted, “that the Supreme Court has decided to strike down nearly every antiabortion law” and to permit “only minimal curbs” upon abortion. Griswold would be “the basis” for the rulings, which “were also influenced by the 1972 opinion of U.S. District Judge Jon O. Newman” in the Connecticut case. “No decision in the court’s history,” Time predicted, “has evoked the intensity of emotion that will surely follow this ruling.”128
Warren Burger was absolutely livid when he learned of Time’s story that Monday morning, but the magazine’s scoop was short-lived. Just after ten a.m., with all nine justices on the bench, the Chief Justice turned to the author of the Roe and Doe opinions for the announcement of the Court’s decisions, and Harry Blackmun began reading his eight-page statement while the Court’s press office started to distribute copies of the two decisions to waiting reporters.
Blackmun’s opinion for the seven-justice majority in Roe came to fifty-one pages in print. In the very second paragraph he directly addressed the concern that had led him to consider releasing his explanatory comments in some quotable form:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.
The Court’s task, Blackmun emphasized, was “to resolve the issue by constitutional measurement free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortive procedure over the centuries.”
The first four sections of Blackmun’s opinion succinctly dispensed with the issues of jurisdiction, standing, and mootness, and while the Court upheld “Jane Roe’s” status in challenging the Texas abortion statute, it dismissed both Dr. Hallford and “John and Mary Doe.” Then, following a brief introductory segment, Blackmun moved on to a nineteen-page historical section which owed much to his earlier summer research. He emphasized that “the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage,” and then devoted considerable attention to reviewing the history of the Hippocratic Oath and to how abortion, both before and after the crucial stage of fetal “quickening,” had been treated under English law across the centuries. His footnotes included multiple references to Larry Lader’s 1966 book and to Cyril Means’s two law review articles, and when his survey progressed to America’s own legal heritage with regard to abortion, Blackmun noted that “at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.” Only at about the time of the Civil War, Blackmun observed, did most states decree that abortions before as well as after quickening were criminal offenses. In other words, until then, “a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stages of pregnancy,” Blackmun pointed out, “the opportunity to make this choice was present in this country well into the 19th century.”
The Roe opinion attributed some responsibility for that nineteenth century shift to the antiabortion stance of the American Medical Association, and then proceeded to summarize the recently liberalized stances that the American Medical Association, the American Public Health Association, and the American Bar Association had all adopted. Moving out of that lengthy historical section, Blackmun explicitly addressed the question of what legislative purpose underlay the enactment and continuation of antiabortion laws. In the nineteenth century, he noted, abortion had been highly dangerous for a pregnant woman, but present-day medical data indicated that “abortion in early pregnancy, that is, prior to the end of the first trimester … is now relatively safe.” “Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure,” he concluded, “has largely disappeared,” even though a state of course continued to have “a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” Especially since “the risk to the woman increases as her pregnancy continues,” hence “the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.”
Quite distinct from any such health-based rationale for antiabortion laws, Blackmun acknowledged, was a state interest “in protecting prenatal life.… Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”
Only well past the two-thirds mark in the opinion did Blackmun finally address the constitutional contentions advanced by “Roe” and other abortion case plaintiffs. “The Constitution,” he began, “does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as” Botsford in 1891, “the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts the Court or individual Justices have indeed found at least the roots of that right in the First Amendment,” citing Stanley, in the Fourth and Fifth Amendments, as reflected in a number of search-and-seizure cases, “in the penumbras of the Bill of Rights,” as indicated by Justice Douglas in Griswold, “in the Ninth Amendment,” as suggested by Justice Goldberg in Griswold, “or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment” and recognized as early as Meyer in 1923. “These decisions,” Blackmun went on, “make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ … are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage,” citing Loving, procreation, citing Skinner, contraception, citing Eisenstadt, “family relationships,” citing Prince v. Massachusetts, “and child rearing and education,” citing Pierce and Meyer.
“This right of privacy,” Blackmun then continued, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” After listing some of the reasons for which a woman might choose to terminate a pregnancy, Blackmun cited the contention of some parties “that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.” Any argument that Texas or another state “has no valid interest at all in regulating the abortion decision, or no interests strong enough to support any limitation upon the woman’s sole determination, is unpersuasive.” For instance, “a state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.” Furthermore, Blackmun added, “it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions.”
Thus, Blackmun said, “We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” He devoted two long paragraphs to noting many of the recent lower court decisions on constitutional challenges to state abortion statutes, and observed that “most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.”
Proceeding to a more direct evaluation of Texas’s assertion that its antiabortion statute reflected a compelling state interest in protecting the fetal “person,” Blackmun acknowledged how Texas’s brief described “at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically” by the Fourteenth Amendment. Blackmun also noted, however, Robert Flowers’s admission at reargument that no case could be cited that had ever held a fetus to be a Fourteenth Amendment “person,” and he further explained that while the Constitution “does not define ‘person’ in so many words,” virtually every usage of the term in the document “is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.”
In a footnote, Blackmun additionally indicated that some considerable tension appeared to exist between Texas’s fetal personhood contention and the maternal life exception in its antiabortion statute. “But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant,” Blackmun rhetorically asked, “does not the Texas exception appear to be out of line with the Amendment’s command?” Also, if Texas truly viewed the fetus as a person, why did its laws not provide for any criminal abortion penalties for the woman herself? Similarly, the punishment for abortion was “significantly less” than the penalty for murder, and “If the fetus is a person, may the penalties be different?” Blackmun inquired.
In the text, Blackmun thus concluded that “All this, together with our observation … that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Nonetheless, Blackmun recognized that on account of the embryo or fetus, “The pregnant woman cannot be isolated in her privacy,” and that therefore the situation “is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt, Griswold, Stanley, Loving, Skinner, Pierce, and Meyer were respectively concerned.” Thus “it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.”
Blackmun explicitly stated that the Court “need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” He observed that “There has always been strong support for the view that life does not begin until live birth,” but he also noted how the nineteenth-century focus on quickening as the most significant intermediate point in fetal development had over time been displaced by increased regard for “viability,” the point at which a fetus is “potentially able to live outside the mother’s womb, albeit with artificial aid.” Viability, Blackmun said, was “usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.”
Following a quick survey of other legal precedents concerning the status of the fetus, including two citations to Bill Maledon’s Notre Dame law review piece, Blackmun frankly concluded that “In short, the unborn have never been recognized in the law as persons in the whole sense.” Then, in an initial step towards a conclusion, Blackmun reiterated how a state had both “an important and legitimate interest in preserving and protecting the health of the pregnant woman” and “another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’”
Then Blackmun moved decisively toward the first crux of his holding:
With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above … that until the end of the first trimester mortality in abortion is less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.
Equally important, Blackmun also explained that this meant that
for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
Blackmun immediately proceeded to the second principal aspect of the holding:
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
In light of such standards, abortion laws like Texas’s were “violative of the Due Process Clause of the Fourteenth Amendment” and the question of whether the sole exception for “saving the life of the mother” also made such statutes unacceptably vague did not have to be considered. The opinion then offered a brief summary of its earlier analysis:
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
Blackmun noted that a state of course “may proscribe any abortion by a person who is not a physician,” and pointed out that while the Roe and Doe opinions “are to be read together,” that in neither case was the Court addressing whether any “father’s rights” existed with regard to an abortion decision. Then Blackmun moved to his penultimate statement:
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and example of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.
Thus, after a brief closing section stating the judgment and explaining that Texas’s inevitable compliance with the ruling made it “unnecessary to decide whether the District Court erred in withholding injunctive relief,” Blackmun’s majority opinion in Roe v. Wade was complete.129
Blackmun’s opinion in Doe v. Bolton was a somewhat shorter and more modest statement. It held that both “Mary Doe” and the physician plaintiffs had standing to challenge the Georgia reform law, and it affirmed those portions of the Atlanta ruling that had already invalidated as unacceptably narrow the therapeutic exceptions specified by the Georgia statute. Blackmun stated that while the law was not void for vagueness, all of its principal surviving provisions were themselves unconstitutional, and his opinion proceeded to nullify them one by one. In striking down Georgia’s hospitalization requirement, Blackmun explained that “We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests” that the Court had acknowledged in Roe. Similarly, with regard to the hospital committee authorization mandated by the Georgia law, the Doe opinion concluded that “we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee.” Lastly, the statute’s edict that two other doctors endorse any given physician’s recommendation of abortion was also unacceptable, for “Required acquiescence by co-practitioners has no rational connection with a patient’s needs and unduly infringes on the physician’s right to practice.” Thus, just as Roe effectively voided the abortion laws of all thirty states whose statutes resembled the one in Texas, the Doe opinion invalidated not only the Georgia law but also the generally similar reform provisions that had been adopted by fourteen other states since 1967.130
Three members of the seven-justice Roe and Doe majorities filed individual concurrences in addition to joining the two Blackmun opinions. William O. Douglas’s thirteen-page statement was the longest, and virtually all of it was devoted to an explication of the constitutional right to privacy. Like Blackmun, he acknowledged that “There is no mention of privacy in our Bill of Rights,” but he too underscored how many earlier decisions had nonetheless “recognized it as one of the fundamental values those amendments were designed to protect.” Douglas conceded that the Ninth Amendment “obviously does not create federally enforceable rights,” but its reference to other unenumerated rights “retained by the people” included many that also came within the meaning of Fourteenth Amendment “liberty.”
Douglas then outlined a three-part synopsis of what those privacy elements of “liberty” encompassed. “First is the autonomous control over the development and expression of one’s intellect, interests, tastes, and personality.” These “aspects of the right of privacy” were protected by the First Amendment as well as the Ninth, and in Douglas’s view they were “absolute, permitting of no exceptions.” Second, Douglas said, “is freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.” Loving, Skinner, Griswold, Eisenstadt, and Pierce all involved such freedoms, and while these rights were subject to some control by the state, any such regulation had to be justified by a “compelling state interest.” Douglas quoted Brennan’s striking statement in Eisenstadt, noted Justice Brandeis’s 1928 espousal of the “right to be let alone” in Olmstead, and denied in a footnote that Griswold and the other relevant decisions had invoked “substantive due process,” insisting that that was “a bridge that neither I nor those who joined the Court opinion in Griswold crossed.” Third and finally, Douglas declared, “is the freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf,” as exemplified by cases that dated from 1891 to 1972.
All told, Douglas said, “the clear message of these cases” was that “a woman is free to make the basic decision whether to bear an unwanted child. Elaborate argument is hardly necessary to demonstrate that child birth may deprive a woman of her preferred life style and force upon her a radically different and undesired future.” Like Blackmun, Douglas also recognized that a state had a proper interest both in protecting women’s health and in “the life of the fetus after quickening,” but he emphasized that “it is difficult to perceive any overriding public necessity which might attach precisely at the moment of conception,” as both the Georgia and Texas statutes presupposed. Douglas presented a lengthy quotation from former Justice Tom Clark’s law review essay in support of that position, and concluded that the Georgia law in particular was “overbroad because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth.”
Douglas observed in conclusion that “The right of privacy has no more conspicuous place than in the physician-patient relationship,” and that the elaborate approval procedure mandated by Georgia and struck down in Doe represented “a total destruction of the right of privacy between physician and patient” and hence violated a “basic” Fourteenth Amendment liberty.131
A second but considerably briefer concurrence was filed by Potter Stewart, who sought to insist—in the face of Douglas’s express denial—that with regard to the 1965 decision in Griswold, “it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the ‘liberty’ that is protected by the Due Process Clause of the Fourteenth Amendment.” Implicitly referring to his own 1965 dissent, Stewart proclaimed that he now nonetheless accepted Griswold as a valid “substantive due process” holding, even though he continued to assert that “There is no constitutional right of privacy, as such.”
Stewart also acknowledged that while “The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life,” “the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights.” He quoted at some length from John Harlan’s dissent in Poe v. Ullman, from Brennan’s crucial passage in Eisenstadt, and from Jon Newman’s opinion in the Connecticut case. That individual right recognized in Eisenstadt, Stewart stated, “necessarily includes the right of a woman to decide whether or not to terminate her pregnancy,” and indeed, he added, “it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas.”132
The third and shortest concurrence was Warren Burger’s last-minute statement. Only three paragraphs long, it invoked Vuitch in emphasizing that both the Georgia and Texas statutes “impermissibly limit the performance of abortions necessary to protect the health of pregnant women.” Burger announced, in explicit conflict with Doe’s actual holding, that he “would be inclined to allow a State to require the certification of two physicians to support an abortion,” and he added that he did not read the two decisions as entailing “sweeping consequences.” “Plainly,” he somewhat gratuitously insisted in his closing line, “the Court today rejects any claim that the Constitution requires abortion on demand.”133
Of the two dissenting opinions, Byron White’s, which William Rehnquist also joined, was very brief, filling hardly two pages, but it was nonetheless quite tart. His majority colleagues, White said, were holding that prior to fetal viability, “the Constitution of the United States values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus.” He added that “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action,” wielded that right to void the existing abortion statutes of some forty-six states. “As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review.” White argued that the Texas law was “not constitutionally infirm because it denies abortions to those who seek to serve only their convenience rather than to protect their life or health,” and further contended that since “Jane Roe” had alleged no such therapeutic need, her case should not be allowed to cover such claims. In short, White said, the Court should not erect “a constitutional barrier to state efforts to protect human life” and give “mothers and doctors … the constitutionally protected right to exterminate it.”134
William Rehnquist’s dissent conceded that the Roe opinion “commands my respect” because of how Blackmun utilized “both extensive historical fact and a wealth of legal scholarship” in framing the decision, but he maintained that since the Roe record failed to indicate that “Jane Roe” was in her first trimester of pregnancy at the time the case was filed, her lawsuit could not properly be used to vindicate the constitutional rights of women with unwanted first trimester pregnancies. More substantively, Rehnquist also asserted that “I have difficulty in concluding … that the right of ‘privacy’ is involved in this case,” for a medical procedure such as abortion “is not ‘private’ in the ordinary usage of that word.” He expressed agreement with Stewart’s observation that “liberty” was a better constitutional designation, but objected to the Court’s applying the all but impossible “compelling state interest” standard of review to abortion statutes rather than the far more deferential “rational basis” standard. More pointedly, he also observed that the majority’s effort “to break the term of pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one” essentially amounted to “judicial legislation.”135
When the nine members of the U.S. Supreme Court completed the public announcement of their decisions in Roe v. Wade and Doe v. Bolton on Monday morning, January 22, 1973, only Harry Blackmun had given extended consideration to what the consequences might be. He knew relatively little about Norma McCorvey and Sandra Bensing, not even their actual names, nor had he heard of Judy Smith or Judith Bourne. Roy Lucas, Linda Coffee, Margie Hames, and Sarah Weddington, like Dorothy Beasley and Jay Floyd, were now familiar names, if not entirely familiar faces, even if neither Henry Wade nor Arthur Bolton—just like “Jane Roe” and “Mary Doe”—had personally attended either of the oral arguments. Similarly, Alan Guttmacher, Bob Hall, Larry Lader, and Cyril Means were now familiar bylines too. But Harry Blackmun was equally well acquainted, at least on the printed page, with the handiwork of Sidney Smith and Sarah Hughes and Irving Goldberg, just as he was also familiar with Belous, with Gerhard Gesell in Vuitch, with Jon Newman in Connecticut, with the other federal panel decisions reaching from New Jersey to Illinois and Wisconsin, and with the state court rulings that reached from New York back to California. Likewise, he appreciated the legacy of John Harlan’s dissent in Poe, perhaps even more so than any of the opinions in Griswold or even Bill Brennan’s contribution in Eisenstadt. Granted, he had never heard of Warren Upson, nor did he know Estelle Griswold or Lee Buxton, and if Fowler Harper was the coauthor of an oft-cited treatise on torts, well, Katharine Hepburn was that actress who had costarred with Spencer Tracy. Margaret Sanger was an acknowledged historical figure, even if no one at the Supreme Court had ever heard of Leah Cadbury, or Clara McTernan, or Eugene Cryne if not Bill Fitzgerald.
It had been a long time in coming—nearly two years, Harry Blackmun thought—but really it had been almost fifty years since Kit Hepburn had first welcomed Margaret Sanger to Hartford and more than thirty-three years since the priests of Waterbury had made it clear that Bill Fitzgerald had better enforce that statute, even if it literally did mean arresting the woman next door. But in the end, it had seemed far easier than Roy Lucas had envisioned in 1967, or Alan Guttmacher in 1963, or than Fowler and Estelle had found their challenge in 1958, or Kit Hepburn and Sallie Pease in that summer of 1939. Yes, there had been Eisenstadt, and, far more importantly, there had also been Griswold, but from New York University to Austin to Atlanta, as from Hartford to Waterbury to New Haven, there had of course been so much—and so many—more, even if neither Harry Blackmun nor any of his six supportive colleagues ever knew more than a few of their names. But in the end, Harry Blackmun grasped perhaps the simplest but eventually the most long-forgotten truth of all: “Roe against Wade was not such a revolutionary opinion at the time.”136