Liberty and Sexuality Since Roe v. Wade
Norma McCorvey had heard nothing at all about Roe v. Wade for many months when she suddenly saw the front-page newspaper article reporting the Supreme Court’s decision. The unexpected death of former President Lyndon Johnson had taken priority as the day’s top news story both in Texas and across the nation, but the coverage of the Roe and Doe rulings was almost equally substantial. “I was happy, sad and mad,” Norma later explained, for “in a way I felt cheated because I didn’t benefit” from the long-awaited victory. Since the fall of 1970, just a few months after Henry McCluskey had arranged for the adoption of her newborn “Roe” baby, Norma had been living with Connie Gonzales, whom she had first met as a coworker at a grocery store, but only now, for the first time, did Norma tell Connie that she was that “Jane Roe” in the newspaper story about the Supreme Court.
Within a day both Sarah Weddington and Linda Coffee telephoned Norma. Sarah was surprised at the breadth of the Court’s decision, and slightly astonished that Warren Burger had joined the majority, but she told reporters that she was “very glad for the women of Texas.” Linda was likewise startled by the 7 to 2 margin, and while she found the outcome “terribly satisfying” both “as a woman and as a lawyer,” she explained in long interview with the Southern Baptist Convention’s press service that “From my personal perspective as a Christian, it would tear me up to have to make a decision on abortion except in the very early stages, and I would have to have a compelling reason even then.” Linda pointed out that “Legal personhood is separate entirely from a moral or religious view of personhood,” but she emphasized that “the state should be neutral on abortion because it should never appear either to sanction an abortion or to interfere improperly with a doctor-patient relationship.” In part through her mother, who worked at the Baptists’ Christian Education Commission, Linda also introduced Robert O’Brien, the Baptist Press correspondent, to her heretofore anonymous client, and just four days after the Supreme Court decision was announced, the Baptist news service distributed a story identifying “Jane Roe” as twenty-five-year-old Norma McCorvey, a “part-time delivery girl.” O’Brien quoted Norma as saying that “It’s great to know that other women will not have to go through what I did,” and while the Dallas Morning News picked up O’Brien’s scoop and announced that “Abortion Reformer Sheds ‘Jane Roe,’” the paper nonetheless gave the story no greater prominence than placement on page thirty. Three full days passed before Dallas’s other daily paper took note of the news, and aside from one or two southern dailies that also picked up on the Baptist Press story, Norma McCorvey’s identity receded into full anonymity for most of the ensuing decade.1
Marsha and David King had moved away from Dallas even before the Supreme Court reargument three months earlier. David had changed jobs and Marsha, who was hoping to enter law school that coming fall, was working temporarily in Washington until their plans were certain. She knew about the decision even prior to a congratulatory call from Sarah, but after Sarah sent her copies of the full opinions, Marsha was truly exhilarated. While the ruling itself “was just too good to believe,” Blackmun’s opinion was even better. “There was not a single sexist remark in the Texas decision—not even any patronization. It was truly a feminist statement,” Marsha told Dallas’s Ginny Whitehill. She was also happy that Norma had stepped forward, for “She deserved some recognition” and Marsha remained sorry that they had been unable to locate McCorvey so as to invite her to either of the Supreme Court hearings. “She is such a lost, little soul,” Marsha lamented. “It makes me sad to think of her, but she will not be forced to bear another unwanted child.”
The other Texas repeal proponents were just as ecstatic about the Court ruling as Marsha, and Ginny Whitehill told Dallas reporters on the very first day that “This is more important for women than getting the vote.” SMU chaplain and clergy referral activist J. Claude Evans termed the judgment “an ideal decision,” and characterized Blackmun’s three-tier analysis of pregnancy as “a beautifully accurate balancing of individual vs. social rights.” The two long-pending criminal abortion charges against Dr. Hallford were soon dismissed, but, unbeknownst to the other participants in Roe, six weeks before the Supreme Court ruling Hallford’s medical license had been quietly canceled by the Texas Board of Medical Examiners on account of another recurrence of Hallford’s prior problem with prescription drug abuse. None of Hallford’s subsequent efforts to win reinstatement of his license ever succeeded, but just five months after the Roe ruling a far more dreadful tragedy occurred when Linda’s friend Henry McCluskey, without whom Norma McCorvey certainly would not have become “Jane Roe,” was tied up and shot to death by a male acquaintance. Two weeks passed before Henry’s body was found in a Dallas park, but exactly six years to the day after its decision in Roe v. Wade, the U.S. Supreme Court declined to review the death sentence that had been meted out to McCluskey’s killer.2
Jay Floyd, who had handled most of Texas’s defense of its antiabortion statute until the end of calendar 1972, when a new state attorney general, John Hill, had taken office, was both “disappointed” and “somewhat shocked” by the 7 to 2 Supreme Court loss. Dallas County District Attorney Henry Wade, who had never taken any personal interest in the case that bore his name, made no comments to the press and confessed years later that actually he had never read the decision. “I don’t really have any views on it, either way,” Wade would generally tell subsequent questioners, but when pressed, Wade would readily concede that “in some cases abortion is justified.”3
In Atlanta, Wade’s counterpart, Georgia Attorney General Arthur K. Bolton, likewise offered no immediate reaction to inquiring reporters, but two decades later Bolton willingly divulged that losing Doe v. Bolton had not personally bothered him a bit, for his own private view of abortion was that “it’s strictly a woman’s decision.” Dorothy T. Beasley, in subsequent years a state appellate judge, would politely decline to characterize her own personal reaction to the Doe ruling, but when the Clerk’s Office at the Supreme Court, following standard procedure, sent collect telegrams on January 22 to the Roe and Doe attorneys, formally apprising them of the decisions, Western Union notified the Clerk that “Dorothy T Beasley Asst Atty General of Georgia 132 State Judicial Bldg … declined to accept your message and charges.”
If Dorothy Beasley was deeply upset at the Supreme Court’s holdings in Roe and Doe, Margie Hames was “very pleased.” She had felt from the very outset, she told Atlanta reporters, that “this is one of the most important women’s rights cases,” and on the very day of the decision she arranged for her old Vanderbilt Law School mentor, Fred Graham, to film a silhouetted interview with Sandra Bensing at Hames’s law office for his new employer, CBS News. Over the ensuing six months both Margie and Tobi Schwartz would devote countless hours to helping Sandra acquire visitation rights so that she could again see her two oldest children, who each had been living with foster families for more than three years. A decade and a half later, however, Hames and Schwartz’s efforts would be repaid in an odd and highly unpleasant way when Sandra, who had been introduced by her sister to an Atlanta-area pastor who was affiliated with the antiabortion group Operation Rescue, decided that she should attempt to reopen Doe v. Bolton and reverse the 1973 decision. Starting in December 1988 with an unlettered petition to Atlanta’s U.S. District Court, Sandra explained that in 1970 “I was mentally unstable and not … totally aware of what was happening,” and that she now believed that “I was used by my attorneys at that time.” Once her effort and change of heart were publicized in the Atlanta press, two antiabortion attorneys volunteered to represent her, and Atlanta papers gave extensive coverage to Sandra’s newfound conviction that signing on to be the lead plaintiff in Doe v. Bolton was “the biggest mistake I ever made.” The federal court unsurprisingly turned aside Sandra and her new allies’ effort to reopen a case that had been closed for over fifteen years, but the extensive publicity did allow eighteen-year-old Melissa Able, Sandra’s Doe baby, to make contact with her mother for the first time. In subsequent years press reports would chronicle a host of ups and downs in Sandra and Melissa’s new relationship, but twenty-three years after she had helped initiate Doe v. Bolton, Sandra Bensing Cano would forthrightly declare that “abortion is wrong for anyone.” With one of the named parties from Georgia’s landmark case a heartfelt convert and supporter of Operation Rescue, it was equally fitting, if not ironic, that the other, living quietly in retirement and contending with the ailments of old age, was so avowedly pro-choice.4
Among the New York abortion activists, reactions were just as jubilant as in Dallas and Atlanta. Cyril Means was in Albany when he first heard the news of the Court’s action, and after taking an evening train back to New York City, he went directly to Harriet Pilpel’s apartment on the assumption—which indeed proved correct—that Pilpel would have received copies of the opinions even though the decisions were hardly eight hours old. NARAL executive director Lee Gidding, observing how “the scope of the decision and the decisiveness of the vote mean total victory,” wrote Ginny Whitehill to ask, with open amazement, “how many people do you know who have actually won, in total, the objective they set for themselves?” NARAL chairman Larry Lader, who had just completed a brief new history of the abortion struggle since the mid-1960s, remarked that Roe and Doe were “far broader in scope than anyone expected” and “even more conclusive than any of us dared to hope.” Attorney Nancy Stearns expressed astonishment at how it had taken only “an amazingly short time in the courts to win recognition of the right to abortion once the ball started rolling,” but she, like many others, emphasized that “one of the most dangerous things that could happen now is that women could sit back and think that they have won,” irrespective of the antiabortion efforts that had proven so powerful during all of the previous year.5
In San Francisco, Roy Lucas first heard about the decisions when Dr. Vuitch’s wife awakened him with an early morning phone call. Once copies of the opinions arrived later that day by plane, Lucas told a wire service reporter how different it all seemed now from when he had first begun work on his NYU Law School essay only a little more than six years earlier. “They laughed at it in 1966,” he said with exaggerated reference to his former professors, but “Now it has a 7 to 2 majority behind it.”
But even the remarkable approbation of the U.S. Supreme Court did not erase all of the resentments that Lucas had developed during the course of the previous two and a half years of internecine battling over Roe and Doe. Several weeks after the cases came down, Lucas phoned Margie Hames to offer congratulations on what a tremendous step forward Doe’s voiding of hospitalization requirements represented for both women and doctors all across the country, but he was somewhat taken aback when Hames, who had certainly not forgotten Lucas’s earlier insolent letters, responded somewhat acerbicly. In rejoinder, Lucas replied with another letter that all but outdid any of his prior correspondence. His call, Lucas insisted, was simply a polite gesture. “You just did not understand what I was congratulating you about. Perhaps it was that you had finally figured out” what hospital accreditation meant “and understood that elimination of the mandatory hospitalization requirement was vitally necessary to the delivery of abortion services in the United States. Surely you cannot (with a straight face) assert that your argument and briefs made a lasting impression and deeply influenced the Court. The Doe opinion too frequently rejects assertions you made and too often relies upon arguments and evidence for which you were not responsible.” Lucas went on to explain that eighteen months earlier he had decided that answering Hames’s letter telling him to grow up “was a waste of time,” in part because Hames’s obvious “immaturity” was “enough to establish that your mind was closed.” Likewise, Larry Lader’s brand-new book, Lucas volunteered, was “incredible,” but only because it created “new frontiers in abortion fiction.” With Doe, however, Lucas reiterated how “I felt throughout that a realistic danger existed of your arguments being so weak” that the Supreme Court would uphold the hospitalization and committee approval requirements. He announced that “my view of your competence and ability to contribute to a sweeping decision was the inevitable consequence of considerable matured experience in litigating the issues I was afraid you would present inadequately.” In closing, Lucas insisted that it was “nothing personal,” for “As a person I think very highly of you,” but he spitefully sent a copy of his letter directly to Cyril Means. In a postscript, however, Lucas nonetheless offered a stunningly insightful commentary that could just as well have been applied to many other intramural exchanges that had marked the private history of both Doe and Roe: “For two adult attorneys at law (I am 31 years old now), our correspondence is on a very low level.”6
The first day’s national news coverage of the Roe and Doe rulings emphasized not only the substance of the decisions but also how the Court’s action would likely end most legislative battles over whether abortion law liberalization should be enacted or—in New York’s case—revoked. The New York Times noted how Blackmun’s opinions laid out “an unusually detailed timetable” for state regulation of a pregnant woman’s choice, and New York Governor Nelson Rockefeller, deeply relieved that 1973 would not witness a replay of previous years’ abortion battles, called the Roe decision “a wonderful thing.” PPFA President Alan Guttmacher labeled the ruling “wise and courageous,” but New York’s Roman Catholic archbishop, Terence Cardinal Cooke, termed it “shocking” and “horrifying.” Newsweek magazine asserted that the outcome was “an astonishing decision for the Nixon Court to reach,” and added that “most astonishing of all was the broad scope and explicit detail of the decision.” Time said the ruling was “bold and uncompromising,” and, like several other publications, highlighted how new Gallup poll results showed that when Americans were asked whether an abortion decision during the first three months of pregnancy should simply be left to a woman and her doctor, 46 percent of respondents said “yes” and 45 percent “no.” Some other national reporting, however, stressed that the decisions “surprised almost everyone” and that Blackmun’s timetable “looked a good deal more like legislation than adjudication.”7
Editorially, the nation’s newspapers reacted to Roe and Doe with overwhelming praise. The New York Times welcomed the Blackmun opinions as “a major contribution to the preservation of individual liberties” and said that they offered “a sound foundation for final and reasonable resolution” of the abortion debate. “Nothing in the Court’s approach,” the Times added, “ought to give affront to persons who oppose all abortions for reasons of religion or individual conviction.” The Washington Post termed the decisions “wise and sound,” and the Los Angeles Times stated that they were “sensible” as well as both legally and historically “persuasive.” The Boston Globe said it was “deeply gladdened” by the outcome, and the Wall Street Journal, while expressing “certain reservations,” said that overall the Court had “struck a reasonable balance on an exceedingly difficult question.” The Philadelphia Inquirer praised Blackmun’s “admirably reasoned decision,” and the Pittsburgh Post-Gazette said that the Court had acted with “compassion and intelligence.” The Atlanta Constitution characterized the result as “realistic and appropriate,” and the Raleigh News and Observer stated that the decisions should be “praised” for “upholding our traditional concept of personal freedom.” The Arkansas Democrat asserted that the United States was “doubly blessed that this matter was settled by the court rather than by legislation,” and the St. Louis Post-Dispatch said the Court’s action was “remarkable for its common sense, its humaneness and most of all for its affirmation of an individual’s right to privacy.” Within Texas, the Houston Chronicle commended the judgment as “sound” and the San Angelo Standard-Times praised it as “a wise and humane decision,” while the San Antonio Light concluded that “The ruling is not perfect, but it was as close to it as humanly possible.”8
Jesuit theologian Robert F. Drinan stated that Blackmun’s opinions were “balanced with extraordinary care,” but conservative columnist William F. Buckley, hearkening back to an infamous nineteenth-century ruling in which the Court had upheld slavery, labeled the “outrageous” abortion ruling “the Dred Scott decision of the 20th century.” The religious magazine Christianity Today asserted that “the majority of the Supreme Court has explicitly rejected Christian moral teaching” and has “clearly decided for paganism, and against Christianity.” Protestant ethicist and abortion scholar Daniel Callahan concluded that “the Court should have left the matter in the hands of state legislatures,” and black religious historian C. Eric Lincoln announced himself as a convert to the opposition cause, explaining that “unrestricted abortion … is but one more example of the retreat from responsibility which seems characteristic of the times.” Antiabortion legal scholar John T. Noonan, Jr., decried Roe and Doe as perhaps “the most radical decisions ever issued by the Supreme Court,” and in one of the more widely circulated attacks on the Court’s rulings, The New Republic explicitly endorsed William Rehnquist’s dissent and expressed astonishment that only two justices had refused to join a majority holding which “simply asserts the result it has reached.” The entire issue of abortion, The New Republic claimed, “is not for the courts, but should have been left to the political process.”9
Within medical circles, some physicians who had adopted a repeal stance, such as ASA president Bob Hall, felt that Blackmun had erred in placing fetal viability at twenty-four to twenty-eight weeks rather than at twenty or some other earlier point. Out of some 33,000 doctors who responded to a questionnaire distributed by Modern Medicine magazine, however, more than 64 percent voiced approval of the Roe and Doe decisions, even though in some states, such as Louisiana, majorities of up to 75 percent of physicians expressed opposition. Several weeks later, a nationwide Harris Poll found that 52 percent of respondents favored the Supreme Court decisions, with 41 percent registering disagreement and 7 percent saying they were unsure.10
One day after Roe v. Wade and Doe v. Bolton were publicly announced, Harry Blackmun distributed to his eight colleagues an eight-page memorandum with detailed recommendations for how they should affirm, dismiss, or otherwise vacate and remand the other abortion cases that had been sitting quietly on the Court’s docket awaiting final disposition of Roe and Doe. The following day Blackmun and one of his clerks, Randy Bezanson, flew to Bezanson’s home town of Cedar Rapids, Iowa, where Blackmun had long been scheduled to speak at Wednesday night’s annual dinner of the Cedar Rapids–Marion Area Chamber of Commerce. More than four dozen antiabortion demonstrators turned out to greet Blackmun’s appearance, and perhaps in response, Blackmun took the unusual step of devoting some of his remarks to the Monday decisions. The Supreme Court, he told his 560-person audience, “has not authorized abortion on demand,” and he stressed that the justices “are aware of how sensitive an issue this is and how seemingly insoluble that problem is.” He volunteered that he had very much favored holding the cases for reargument, since it was “too important a matter to study without two justices,” and he went on to explain that “No matter how the Court ruled, it will be excoriated from one end of the country to the other.” Most unusually and intriguingly of all, the Cedar Rapids Gazette also quoted Blackmun as saying with regard to abortion that “I really resent that it had to come before the Court because it is a medical and moral problem,” more than a legal one.11
In both Austin and Atlanta, Texas and Georgia officials undertook the standard procedure of preparing formal petitions asking the Supreme Court to reconsider its two decisions. Connecticut Attorney General Robert K. Killian submitted a four-page statement in support of those requests at the same time that they were formally filed in mid-February, and Dennis Horan, the Chicago attorney who had been so helpful to Jay Floyd eighteen months earlier, likewise filed a petition objecting to the fact that Roe and Doe had been decided without “unborn children” being accorded formal representation during the Court’s consideration of the cases. While the Dallas Morning News editorially welcomed these last-gasp efforts, the Supreme Court accorded the various submissions nothing more than pro forma consideration, and at a February 16 conference the justices privately ratified all of Harry Blackmun’s recommendations as to how the other pending abortion cases should be resolved. On February 26 the high court publicly announced that the petitions for reconsideration of Roe and Doe had been denied, and that twelve additional cases—including those from Missouri, North Carolina, Utah, Kentucky, and South Dakota, plus three other criminal cases against doctors and two appeals each from both the Connecticut decisions and the Illinois case, had all been remanded to lower courts for resolution in light of Roe and Doe and that a thirteenth, Professor Byrn’s appeal from New York, had simply been dismissed. Several weeks later the justices rejected rehearing petitions from both the State of Connecticut and Professor Byrn, and soon thereafter they also remanded the final abortion case on their docket, Dr. Rosen’s suit against the Louisiana law.12
Within a few weeks of the Supreme Court’s two landmark decisions, lower courts following Roe and Doe’s lead resolved a number of well-known and long-pending appeals. Minnesota’s Supreme Court reversed Jane Hodgson’s two-year-old conviction, and the Fourth Circuit Court of Appeals affirmed the earlier District Court judgment voiding Dr. Vuitch’s 1969 Maryland conviction. Over the ensuing several months, other state courts applying Roe and Doe’s principles formally invalidated antiabortion laws in Oklahoma, Illinois, New Mexico, Colorado, Pennsylvania, Arizona, Michigan, South Carolina, and Wyoming. Additionally, at much the same time, federal panels struck down now-obsolete statutes in Tennessee, Rhode Island, Indiana, Montana, and Iowa.13
While judicial compliance with Roe and Doe’s mandate was unsurprisingly prompt, actual implementation of the rulings’ tangible commands by American hospitals was generally slow and in many instances simply nonexistent. Both journalistic and professional surveys disclosed that many hospitals, both private and public, were manifesting no desire whatsoever to begin providing abortion services, but in some states, doctors who had already been performing abortions quickly moved to expand the scale of their clinic facilities.14
Far more visible than the hesitancy of medical institutions, and far more weighty than the editorial opposition of magazines like Christianity Today and The New Republic, however, was the overt political resistance to Roe and Doe that was quickly voiced both by members of Congress and by the national leadership of the Roman Catholic church. Only eight days after the two decisions were announced, Maryland Representative Lawrence J. Hogan introduced a constitutional amendment declaring that a fetus was a Fourteenth Amendment “person” beginning at the moment of conception, and one day later New York Senator James Buckley announced that he would submit a similar measure for Senate consideration. Soon thereafter, the National Conference of Catholic Bishops issued a harsh denunciation of the Supreme Court’s decision, saying that “this majority opinion of the Court is wrong and is entirely contrary to the fundamental principles of morality.” The Bishops asserted that “laws that conform to the opinion of the Court are immoral laws, in opposition to God’s plan,” and they insisted that “our American law and way of life comprise an obvious and certain recognition of the law of God … our legal system is both based in it, and must conform to it.” Most pointedly of all, they declared in conclusion that “we reject the opinion of the U.S. Supreme Court as erroneous, unjust, and immoral.”15
A significant number of Roman Catholic legal scholars, including the ubiquitous Professor Byrn, soon authored equally harsh or dismissive attacks on the Roe and Doe opinions, with one such writer decrying Blackmun’s handiwork as a “shoddy performance, devoid of judicial craftsmanship,”16 but amidst a veritable flood of law journal essays recapping and reviewing the two decisions,17 the most telling attacks on the Court’s rulings came from prominent legal academics who professed not to be personally opposed to abortion.
Far and away the most important critique of Roe v. Wade was written by a young professor who had been involved at firsthand in the Court’s earlier consideration of Griswold, former Earl Warren clerk John Hart Ely. Some years later one commentator would call Ely’s April 1973 Yale Law Journal essay, “The Wages of Crying Wolf,” perhaps “the most famous and influential legal analysis of the past decade,” and on the abortion decisions’ tenth anniversary, one legal newspaper would term Ely’s article the “classic diatribe against Roe.” Ely’s piece began with an almost apologetic reference to Byron White’s and William Rehnquist’s opinions, explaining that “Were the dissents adequate, this comment would be unnecessary. But each is so brief as to signal no particular conviction that Roe represents an important, or unusually dangerous, constitutional development.” Ely offered up several almost flippant remarks—“Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question”—and noted that Blackmun’s focus on viability was insufficiently justified, but his fundamental goal was to point out what he saw as the wholesale inadequacy of the Court’s constitutional analysis. On one central point, Ely noted how “the argument that fetuses lack constitutional rights is simply irrelevant,” for “it has never been held or even asserted that the state interest needed to justify forcing a person to refrain from an activity, whether or not that activity is constitutionally protected, must implicate either the life or the constitutional rights of another person.” Laws prohibited killing dogs, for example, even as some sort of political statement, without anyone having to contend that dogs, or birds, or what have you, themselves possessed any rights.
Ely did concede that “Abortion is too much like infanticide on the one hand, and too much like contraception on the other, to leave one comfortable with any answer,” but in the constitutional context, the Roe opinion’s “inability” to confidently state whether the right that was involved stemmed from the Ninth or from the Fourteenth Amendment should have raised the question of “whether the Constitution speaks to the matter at all.” Ely stressed that he was not arguing for some sort of literalism, for “Surely the Court is entitled,” and indeed “obligated, to seek out the sorts of evils the framers meant to combat and to move against their twentieth-century counterparts.” Hence, “it seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support.” Ely went on to explain that “The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business.” Ely acknowledged that “Roe v. Wade seems like a durable decision,” but more importantly, it was also “a very bad decision,” he emphasized in closing. “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Some months later, Ely spoke out even more strongly, declaring that “Nothing in the Constitution’s text, nothing in the Constitution’s history suggests any right to an abortion.” He maintained that in the Roe and Doe opinions “the Court never adequately explains why a desire on the part of a State to permit a fetus to proceed to life is not a goal sufficiently important to support the legislative efforts in this area,” and that in those opinions, the Court also “fails equally with respect to the other half of its inference,” namely “the proposition that the right to an abortion is a constitutional right entitled to special constitutional protection.” All in all, Ely volunteered, Roe and Doe “could be reversed … without great danger of upsetting an entire body of doctrine.”
Ten years later Ely would admit that his now-famous essay may have been a “little exuberant and oversimplified,” and he would even allow that “In many ways, the country is better off because of” the Roe and Doe decisions. There was no denying, or erasing, however, the indisputably formative influence of his widely read 1973 essay, and Ely’s severely dismissive attitude toward the Blackmun opinions directly stimulated and encouraged a swiftly growing torrent of legal criticism from what could have been supportive quarters.18
Only a month or so after Ely’s landmark article first appeared, two other academic essayists, Philip B. Heymann and Douglas E. Barzelay—the first of whom had been Charles Fried’s co-clerk with Justice John M. Harlan during the year that Poe v. Ullman was decided—published an understated defense of the new abortion rulings. Blackmun’s Roe and Doe opinions “have already engendered much popular criticism,” Heymann and his colleague acknowledged, and they further conceded that “the language of the Court’s opinion in Roe too often obscures the full strength” of the argument underlying the decision. They also admitted that the Court “may well have gone too far in its seeming codification of detailed restrictions on health regulations and procedures,” and that “the line” that Blackmun had drawn at viability “is presently vague, subject to troublesome modifications with the development of medical knowledge and technique, and, in any event, perhaps further along during pregnancy than the mother’s interest requires.” Heymann and Barzelay granted that “the question of constitutionality in the case of abortion statutes is a more difficult one than that involved in Griswold and Eisenstadt,” but “only because the asserted state interest is more important, not because of any difference in the individual interests involved.”
For the most basic constitutional question, however, Heymann and his coworker provided an authentically Harlan-like answer, explaining that “basic values related by principle and tradition to central, widely accepted, organizing concepts of our society” ought to be specified as the foundation for a decision such as Roe. “Sadly,” they observed, “the Court failed to relate the body of long-emerging precedent it recognized as significant,” reaching back even well before Griswold,
to those articulable, widely shared principles that the precedents reflect and that are fundamental to many of our social and political arrangements. This failure leaves the impression that the abortion decisions rest in part on unexplained precedents, in part on an extremely tenuous relation to provisions of the Bill of Rights, and in part on a raw exercise of judicial fiat. The holding in Roe is, nonetheless, far more solid than it at first appears, for it is fully consistent with, and reflects a groping toward, principles that are justified in both reason and precedent even if these principles were never adequately articulated by the opinion of the Court.19
Prominent antiabortion pedagogue John Noonan would later praise Heymann and Barzelay’s concession-laden essay for being “far more articulate than the Court,” but ensuing critical evaluations of Roe and Doe owed far more to John Ely’s perspective than to Heymann and Barzelay’s. Soon after those first articles appeared, two female legal scholars concluded that the Court’s opinions “fail to yield a reasoned justification of the constitutional basis for protection of the woman’s interest in terminating her pregnancy,” since Blackmun “explains the weight of the mother’s interest, rather than its source.” Far more prominently, former Solicitor General and Watergate Special Prosecutor Archibald Cox, in a small book that repeatedly discussed the “Berger” Court and which misstated the Roe and Doe holdings so badly as to suggest that he actually had not read them, nonetheless asserted that “the Court failed to establish the legitimacy of the decision by not articulating a precept of sufficient abstractness to lift the ruling above the level of a political judgment based upon the evidence currently available from the medical, physical, and social sciences.” The Court’s “failure to confront the issue in principled terms,” Cox claimed, “leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics …”20
Several years later, a judge on the Second Circuit Court of Appeals, Henry J. Friendly, who had served on the panel that would have decided Hall had not the New York repeal statute intervened, publicly decried the Supreme Court’s “failure to articulate a defensible principle” in Roe and Doe, and one of the country’s most prominent law professors, Gerald Gunther, stated that the decisions had entailed “infusing a value of questionable constitutional legitimacy into the basic document.” He bluntly added that “I have not yet found a satisfying rationale to justify Roe … on the basis of modes of constitutional interpretation I consider legitimate.” Another academic, boldly claiming that the pre-Roe “lower court decisions that struck down abortion statutes for impairing the right of privacy wholly neglected legal analysis,” further asserted that “By taking an abortion case when it did, the Court forestalled the development of one of its traditional aids for deciding difficult questions—a thoughtful lower court case law.” Declaring that “three years is hardly time enough for the judicial system to evolve sound analysis,” he maintained that “the Court should not have decided an abortion case when it did,” for by doing so the Court had “thrust itself into a political debate and stunted the development” of invaluable lower court litigation.21
One well-known legal analyst, William Van Alstyne, conceded that Blackmun’s Roe opinion was “gratuitously sweeping” and that “its sheer sweep does leave it critically vulnerable,” but he nonetheless emphasized that “Blackmun faced the collision of conflicting views with an admirable directness. Doubtless that extreme candor invited some of the criticism he (and his opinion) have since received. But it was also a degree of candor which commands respect.” Six years later, however, Van Alstyne’s attitude had become dramatically harsher, and he castigated Roe as “an aberration of judicial legislation” and insisted that Griswold “did not imply Roe, or anything even close.” “There is no such thing,” Van Alstyne declared, “as a personal, free-standing, fundamental right embedded in the Constitution of the United States to kill gestating life. Roe v. Wade, in suggesting otherwise, proceeded on an assumption not derived or derivable from Griswold v. Connecticut, from any previous case, or indeed, from any constitutional clause. It was rather judicial legislation.”22
As the years passed, even Ruth Bader Ginsburg, a future Supreme Court justice who in 1973 had headed the American Civil Liberties Union’s Women’s Rights Project, joined the assault, alleging that in Roe “the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” Instead, she later explained, the Court should have simply invalidated the Texas statute “and said no more,” rather than venture into “heavy-handed judicial intervention” in the way that it had. Ginsburg contended that Roe was impaired “by the opinion’s concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex equality perspective,” and she further argued that “Academic criticism of Roe … might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention.”23
Future Yale Law School dean Guido Calabresi was even more outspoken, terming the Roe decision “offensive” and labeling Blackmun’s opinion “highly unfortunate” and “a disaster.” Like Ginsburg, however, Calabresi also focused upon articulating a new perspective that had first been briefly suggested by New York University Law School professor Sylvia Law: that Fourteenth Amendment’s equal protection clause, rather than a substantive, Griswold-style application of privacy or liberty analysis, ought to be the lens through which the constitutional status of abortion restrictions was appraised. Law had submitted that “The rhetoric of privacy, as opposed to equality, blunts our ability to focus on the fact that it is women who are oppressed when abortion is denied,” and she had also maintained that the Court had erred in “falsely casting the abortion decision as primarily a medical question.” Calabresi significantly expanded on Law’s point, arguing that “without a right to abortion women are not equal to men in the law” and pointing out, in classic equal protection language, how antiabortion statutes in terms of gender were “laws enacted by a dominant group which disproportionately burden a disfavored group.” The relevant Fourteenth Amendment command, he asserted, was “equality of access to sex—equality in sexual freedom among men and women,” for “the right at stake is the right of women to participate equally in sex without bearing burdens not put on men.”24
Any number of legal writers would go on to make the point that some alternative term or concept other than “privacy,” such as either “autonomy” or simply “liberty,” ought to be frankly acknowledged as the substantive core of what was at issue in Roe,25 but Ginsburg and Law were far from alone in criticizing Blackmun’s Roe and Doe opinions for being too solicitous of doctors and insufficiently supportive of women’s individual liberty of choice above and beyond whatever medical advice they might be offered by one or another physician. Yale law professor Harry H. Wellington sarcastically observed soon after the decisions came down that Blackmun in Doe “treats the private physician with the reverence that one expects only from advertising agencies employed by the American Medical Association,” and some years later another academic noted that “the Court’s language in Roe … portrays the doctor and not the patient as the primary decision-maker in the abortion context.”26
In subsequent years, sophisticated commentators such as John A. Robertson and Nancy K. Rhoden would highlight how the Court should have devoted more attention to acknowledging the gestational burdens a woman experiences during pregnancy and how too narrow a focus upon the concept of trimesters could distort Roe and Doe’s meaning. Rhoden pointed out that “the Court in Roe never spoke of a second or third trimester,” but only of “a first trimester and then of stages demarcated by the time of viability,” and she similarly noted how “the continuum of pregnancy contains no magic moment at which the maternal health interest becomes compelling.” Rhoden also acknowledged that the Court’s adoption of the potentially fluid frontier of viability meant that “control over the dimensions of a constitutional right has been wholly delegated to medical technology and the physicians who develop, utilize and assess this technology,” but a wide variety of medical, philosophical, and legal commentators all agreed that while no absolutely precise lines of demarcation could be drawn at any stage during pregnancy, viability nonetheless was certainly “a proper cutoff point.”27
Nonetheless, the resolutely critical perspective that had first appeared in John Ely’s influential essay would increasingly prevail as the years passed. By the early 1990s even a leading federal appellate judge would feel no compunction, at least in off-the-bench writings, about ridiculing Roe as “a flop” and disparaging what he termed “the ineptitude of the opinion.” Self-professed conservatives such as Charles Fried, far better known as Ronald Reagan’s Solicitor General from 1985 to 1989 than for his role in helping prepare John Harlan’s landmark dissent in Poe v. Ullman, could decry Roe as “a serious misuse of the Supreme Court’s authority” that was “wrong in method and result” without fear of rejoinder, and even more heated denunciations—“The moral inadequacy of the Roe opinion is matched by its inadequacy as a piece of legal reasoning”—would raise nary an eyebrow.28
But in later years, just as in 1973, Roe and Doe would sustain far graver wounds from the friendly fire of professed supporters than from the explicit attacks of candid opponents. The nation’s most quoted law professor of the 1980s, Harvard’s Laurence H. Tribe, had initially greeted Roe with a law review article ruing how “the substantive judgment on which it rests is nowhere to be found” and asserting that there is “something deeply unsettling about the Court’s conclusion that even after fetal viability, the state may not forbid any abortion that is ‘necessary to preserve the life or health of the mother.’” Nevertheless, in 1981 Tribe accurately told a congressional committee that “Roe v. Wade was but a logical extension of Griswold,” for the “limits on government power declared in Griswold left the Court no alternative other than to impose some limits on abortion regulation as well.” Roe, he explained, “far from creating some novel and unprecedented liberty, simply recognized and extended some deeply felt and well-established principles about the limits of governmental power.” Nine years later, however, Tribe’s enthusiasm had once again slackened, as he emphasized that “the sensitivity of the abortion question counseled more restraint than the Court exhibited in Roe. A gradual enunciation and articulation of the line that separated permissible state laws from laws that violated the constitutional right to privacy” would have been a “more judicious” choice, and elsewhere, in his most influential book, Tribe reiterated that “nothing in the Supreme Court’s opinion provided a satisfactory explanation of why the fetal interest should not be deemed overriding prior to viability.”29
The worst casualties of the excessively negative but nonetheless pervasive consensus about Roe’s wrongheadedness, however, were astonishingly forgetful or ignorant journalists, not ambivalent law professors. Hardly four years after Roe and Doe were decided, The New Republic tried to tell its readers that “In the early 1970s, antiabortion laws were on the way out” and that Roe had “killed off the movement for abortion reform.” Not long after that, Newsweek explained that abortion “was never fully debated in state legislatures” in advance of the 1973 rulings, and quoted an ACLU staffer as confirming that “The Supreme Court decision was too fast and too easy.” Some years later, while opining that “the greatest weakness in Roe” was “its notorious ‘trimester’ analysis,” The New Republic’s editors illuminated their historical perspective somewhat more fully by claiming that “Abortion was rapidly being legalized in 1973 and might well not even be controversial if politics had been allowed to take its course.” Unfortunately, however, faulty historical memories were not exclusively limited to sophomoric magazine editors, for even one of Professor Tribe’s colleagues at Harvard Law School, Mary Ann Glendon, would write that Roe had curtailed “the process of legislative reform that was already well on the way to producing … compromise statutes that gave very substantial protection to women’s interests.” Future Supreme Court justice Ruth Ginsburg similarly amplified her earlier criticisms by lamenting how Roe had been guilty of “stopping a political process that was moving in a reform direction,” and progressive essayist Barbara Ehrenreich expressed regret as to how Roe had “cut off what might have been a grassroots pro-choice movement.” “In the early 1970s,” she explained, “There had been no national debate, no widespread feminist effort to reach out to, and convince, the undecided public of the justice of what we called abortion rights. In this sense,” Ehrenreich concluded, “Roe v. Wade was tragically premature.”30
From the immediate vantage point of 1973, however, with memories of both the devastating Michigan loss and the dire, narrowly averted threat that the right-to-life mobilization had posed to the New York repeal law so freshly in mind, no abortion activists, and no academic or journalistic supporters, expressed any regret that Harry Blackmun and six of his Supreme Court colleagues had ruled that a woman’s choice with regard to abortion was a constitutionally protected right rather than a criminally punishable preference that could be left to the annual vagaries of state legislative votes or statewide popular referenda.
Opponents of the Roe and Doe decisions found relatively little support in Congress for any of the several “right to life” constitutional amendments that had been proposed in the immediate wake of the rulings, but as many state legislatures moved to update and revise their abortion-related statutes, abortion opponents in a few states, such as Rhode Island and Minnesota, adopted new laws that openly contradicted the Supreme Court’s holdings. Lower federal courts swiftly voided such enactments, with one district judge dismissing Rhode Island’s claims as “sheer sophistry,” but in several cities abortion access proponents filed federal lawsuits of their own when municipally supported public hospitals refused to allow staff physicians to perform abortions. Federal judges ruled against the recalcitrant hospital authorities without exception or delay, and a three-judge Florida federal court, acting in a case that Roy Lucas had argued prior to the Roe and Doe decisions, struck down state statutes requiring spousal and/or parental consent before a married woman or a teenager could obtain an abortion.31
Abortion opponents showed increasing signs of popular support, however, and in the fall of 1973 the National Conference of Catholic Bishops publicly highlighted “the need for grassroots pro-life organization” on behalf of a “right to life” constitutional amendment and quickly followed up with a declaration that “there is a moral imperative” for “well-planned and coordinated political organization by citizens at the national, state and local levels.” One Catholic intellectual pointed out that “a considerable gap exists between the official position of the Catholic Church and the thinking of many rank-and-file communicants” on the issue of abortion, and a Washington protest on the first anniversary of the Roe and Doe decisions drew only some seven thousand antiabortion demonstrators. In early March, however, when a Senate subcommittee finally and reluctantly opened hearings on the right to life constitutional amendments that had been introduced a year earlier, four Catholic cardinals—from Boston, Chicago, Los Angeles, and Philadelphia—all appeared as witnesses, the first time in American history that such high-ranking church officials had appeared before Congress.32
On April 12, 1974, in the most significant abortion law development since Roe and Doe, a Massachusetts grand jury charged Dr. Kenneth C. Edelin, a thirty-five-year-old black staff physician at the Boston City Hospital, with criminal manslaughter for having aborted an approximately twenty-two or twenty-four-week fetus that at least one hospital colleague believed was definitely viable. Nine months passed before Edelin stood trial, but even though Judge James P. McGuire instructed the all-white jury that “a fetus is not a person and therefore not a subject for an indictment for manslaughter,” the jurors deliberated for only seven hours before returning with a verdict of guilty. Stunned observers had believed almost unanimously that Edelin’s acquittal was virtually guaranteed, and while some commentaries noted that ten of the twelve jurors were Catholic, Time magazine pointed out to its readers that “By finding him guilty of manslaughter, the jury decided, in effect, that a fetus approaching viability is a person and, as such, is entitled to the full protection of the law.” Judge McGuire sentenced Edelin to simply one year’s probation, and while almost two years later the Massachusetts Supreme Judicial Court would reverse the conviction on the grounds that the evidence against Edelin was so insufficient that the case should not even have gone to the jury, the Boston verdict nonetheless gave right to life advocates the most dramatic boost their cause had yet received.33
The 1974 congressional elections witnessed the defeat or retirement of many leading antiabortion champions, and while the paltry proportion of American hospitals that were performing any abortions—only 17 percent of public and 28 percent of private, one study showed—meant that actual availability was difficult for women in some states, right to life forces were making no significant headway in Congress. Part of the difficulty stemmed from proponents’ inability to unite behind any single version of an antiabortion constitutional amendment, but some observers believed that the shrill tone exhibited in many right to life appeals was inherently self-defeating. One professor at a Catholic-affiliated law school, writing about Roe and Doe in a Catholic periodical, asserted that “the Court’s decision in its basic concerns is more in accord with fundamental Christian principles, and certainly far more judicious in its projections, than the positions reflected in the rather strident criticisms it has received from certain Catholic sources.” Indeed, Raymond G. Decker continued, “it is difficult to comprehend how the basic thrust of the decision in its concern to protect the right of conscience (‘right to privacy’ in legal terms) can be so severely criticized by those purporting to adhere to basic Christian beliefs.”34
In April 1975 the U.S. Senate tabled by a margin of 54 to 36 an amendment that would have terminated federal Medicaid funding for abortions, and in mid-September of that year the Senate subcommittee that had been considering the various right to life constitutional amendments for upwards of two years rejected them all. The National Conference of Catholic Bishops responded forcefully to the Senate action, with a committee headed by New York archbishop Terence Cardinal Cooke announcing that the church had concluded that it was “absolutely necessary to encourage the development in each Congressional district of an identifiable, tightly knit and well-organized pro-life unit.” This Pastoral Plan for Pro-Life Activities, Cooke said, was a response to how “We have been subjected to a brain-washing by people pushing abortion,” but even the Jesuit magazine America expressed extreme discomfort at the Bishops’ initiative, explaining that while their plan specified “in considerable detail the structure, objectives and modes of operation of these political action groups,” the conference concurrently disavowed any formal affiliations, no doubt because of the tax-exemption repercussions that might ensue. “Simultaneous detailed exhortations and disclaimers of responsibility are not credible,” America noted, while observing how it was “regrettable that there is no explicit recognition by the bishops that many Catholics have persistent doubts about the correctness and wisdom of the hierarchy’s stand.”
The bishops’ explicitly political declaration, however, did nothing to unify the prolife cause around any one specific constitutional proposal, and early in 1976 one prominent antiabortion activist, Robert Lynch, wrote publicly about “the terrible and at times scandalous disunity that exists among the pro-life partisans.” Some relative moderates, such as law professors John T. Noonan and David Louisell, favored an amendment that would simply return full authority for abortion law regulation to the states, thus permitting a wide range of results, while others supported only an amendment that would make every human embryo a Fourteenth Amendment person beginning at the “moment of conception” and expressed considerable irritation that other right to life advocates, including the bishops, remained open to less restrictive alternatives. Robert Lynch, who headed the National Committee for a Human Life Amendment, a close adjunct of the Bishops’ Conference, acerbicly observed that “There are presently six national pro-life organizations, each with a different form of amendment, each with a different political plan, each refusing generally to communicate or work with the other.” “It has been said,” he added, “that jealousy and megalomania abound in the pro-life movement, and my experience confirms this charge to some degree.” Lynch warned that “many Catholics are tired of the abortion issue or are apathetic about it,” and cautioned that “the successes that state units enjoyed before the Supreme Court decision have generally been dulled by the events of the past three years.” Both Cardinal Cooke and Archbishop Joseph L. Bernardin, president of the Bishops’ Conference, appeared at a March 1976 House subcommittee hearing to speak in favor of some form of a right to life constitutional amendment, but when the full Senate, on April 28, voted 47 to 40 to table a fetal personhood proposal sponsored by North Carolina Republican Jesse Helms, the New York Times termed the defeat “a major setback” for the right to life cause.35
Nationwide public opinion polls showed no significant change in popular sentiment regarding abortion since Roe and Doe, and while one pair of researchers concluded that the decisions had given pro-choice sentiment something of a boost, numerous analysts viewed the rather surprising stability as a clear indication that most citizens—including many with ambivalent, ambiguous, and at times seemingly contradictory sentiments—had not changed their views since the 1973 rulings. Although considerable poll-to-poll variations could be identified depending on vital differences in the wording of questions, virtually all serious students of the numbers agreed that a very significant and largely stable proportion of respondents favored the availability of abortion for most reasons that a woman or doctor might identify as therapeutic while nonetheless refusing to endorse anything that appeared to represent “abortion on demand.”36
At the same time that the national politics of abortion from 1973 through early 1976 played out largely in reaction to Roe and Doe, the Supreme Court’s endorsement and extension of Griswold-style privacy analysis to the context of abortion also stimulated new legal curiosity as to whether Eisenstadt and Roe’s seeming abandonment of the “marital” emphasis that had been so explicit in Griswold meant that a fresh opportunity was now at hand for a renewed assault on sodomy statutes much like Henry McCluskey had first tried in 1969 with Buchanan v. Batchelor. As early as 1967 one journalist had prophesied that “If not next year or the next, then five years or ten years hence the United States Supreme Court will strike down existing state laws which make practicing homosexuals criminals,” but both before and after its 1971 rejection of Buchanan, the Supreme Court on several occasions sidestepped any substantive consideration of cases contending that consenting adults ought to enjoy constitutional protection from criminal punishment for one or another private sex act, including one appeal by two Arkansas men who had each been sentenced to eight years in prison for engaging in oral sex in a parked car.37 Even prior to Roe and Doe, Justice Marshall, dissenting in a case involving state regulation of topless bars, had volunteered that in light of Griswold “I have serious doubts whether the State may constitutionally assert an interest in regulating any sexual act between consenting adults,” and several lower federal courts cited both Griswold’s and Roe’s protections of privacy in voiding disciplinary actions that nosy school boards in Nebraska and Alabama had attempted to take against unmarried female teachers.38 In November 1973, however, the Supreme Court, in a brief per curiam opinion, unanimously reversed a Fifth Circuit Court of Appeals decision, written by Judge Irving Goldberg, which had found Florida’s sodomy statute to be unconstitutionally vague. Exactly two years later, in a 6 to 3 per curiam holding from which Justices Brennan, Marshall, and Stewart dissented, the high court also reversed a Sixth Circuit decision which had held that Tennessee’s sodomy law was unconstitutionally vague after it was challenged by a man who had been sentenced to five to seven years’ imprisonment for the crime of cunnilingus. The Supreme Court majority called such oral gratification a “sexual aberration,” and one otherwise sympathetic academic commentator termed the Court’s embarrassingly strenuous effort to uphold the Tennessee law “truly extraordinary.”39
In 1974, however, a homosexual man in Richmond, Virginia, with assistance from the National Gay Task Force and in-state lawyers affiliated with the American Civil Liberties Union, filed a federal declaratory judgment action much like Buchanan challenging the constitutionality of Virginia’s sodomy statute. John Doe v. Commonwealth’s Attorney was heard by a special three-judge district court, and while a two-member majority of the panel—seventy-six-year-old Albert V. Bryan and seventy-three-year-old Oren R. Lewis—did little more than cite the Supreme Court’s recent endorsement of Florida’s similar law in dismissing the challenge, District Judge Robert R. Merhige, Jr., penned a forceful dissent. “A mature individual’s choice of an adult sexual partner, in the privacy of his or her own home, would appear to me to be a decision of the utmost private and intimate concern,” Merhige wrote. “Private consensual sex acts between adults are matters … in which the state has no legitimate interest,” as indicated both by Brennan’s language in Eisenstadt and by the Court’s earlier 1969 holding in Stanley v. Georgia.
One subsequent commentator labeled Judge Bryan’s majority opinion “extraordinarily shoddy,” and the “Doe” attorneys quickly appealed their loss to the Supreme Court, citing Griswold, Stanley, Roe, and especially Eisenstadt in support of their challenge. On March 29, 1976, however, with absolutely no warning, the high court by a 6 to 3 margin summarily affirmed the Bryan dismissal without even choosing to hear argument in the case. The Court’s action generated front-page stories in the national press, with the Los Angeles Times terming it a “major defeat” of “far-reaching impact” for gay rights proponents and the New York Times emphasizing how the “ruling sharply departs from a 10-year trend in which the high court had increasingly expanded the concept of the constitutional right to privacy.” Justices Brennan and Marshall, along with the Court’s newest member, John Paul Stevens, a five-year veteran of the Seventh Circuit Court of Appeals whom President Gerald Ford had nominated to replace the incapacitated William O. Douglas and who had been unanimously confirmed by the U.S. Senate just four months earlier, were the three dissenters from the Court’s summary disposition. Time magazine described civil libertarians as “thunderstruck” by the Court’s action, and Bruce Voeller of the National Gay Task Force admitted that it was “an enormous disappointment.”40
Academic reaction to the summary affirmance was vociferously critical, but some commentators acknowledged that it might well signal the end of any Eisenstadt-like extensions of Griswold, and a few even hinted that appealing the Virginia setback to the Supreme Court had been a tactical mistake. ACLU and gay rights attorneys nonetheless pulled out all the stops in petitioning the Court to reconsider its action and grant Doe full consideration on the merits, but on May 19 the Court unsurprisingly denied the petition for rehearing. Thanks to recent legislative revisions of old criminal codes, some eighteen states—a big jump from 1973’s total of seven—had quietly decriminalized all sodomous sex acts, and seven others now boasted statutes that expressly excluded married couples from their penalties. Some gay strategists wondered whether Doe was a further and conclusive sign that ongoing decriminalization efforts should focus on legislatures rather than on courts, but national public opinion surveys nevertheless showed that some 72 percent of Americans thought that homosexual relations were “always wrong,” and 59 percent believed that there should be laws “against sex acts between persons of the same sex,” even though some 38 percent indicated that “what consenting adult homosexuals do in private is no one else’s business.”41
In spite of the Doe rebuff, ACLU attorneys hesitantly agreed that another Virginia case, in which a married couple who had recruited a Jamaican immigrant for a “threesome” had been sentenced to several years in prison—and the Jamaican man deported—after the wife’s two daughters from a previous marriage had shown photos of the encounter to school officials, should indeed be appealed to the Supreme Court. Aldo and Margaret Lovisi had initially met Earl Romeo Dunn, as he called himself, after he answered an ad they had placed in Swingers Life magazine, and on their third meeting, by means of a camera timer, the trio had taken photos of Margaret performing fellatio on both her husband and Mr. Dunn. Margaret’s twelve and thirteen-year-old daughters, who did not care for their stepfather, took one or more such pictures to school, and after child welfare authorities were notified, local police obtained a search warrant and raided the Lovisis’ home, seizing hundreds of sexual films, magazines, and photos, including those picturing the Lovisis with Earl Dunn. Aldo was charged with both cruelty to children as well as violating the Virginia sodomy statute—for allowing his wife to perform fellatio on him—and Margaret was arrested on two counts of sodomy, for performing oral sex both on her husband and on Mr. Dunn. At trial, the daughters testified unpersuasively that they had taken the photos of their mother, stepfather, and the Jamaican visitor, but the Lovisis were convicted on all counts. Appeals of the three sodomy convictions were routinely turned aside, and while the Virginia Supreme Court did void Aldo’s initial child cruelty conviction on the grounds that the jury had received prejudicial instructions, the justices nonetheless volunteered that the photos depicting consensual oral sex in the privacy of the Lovisis’ home “reveal unspeakably depraved conduct on the part of the three adults.”
Aldo and Margaret were each given two years’ imprisonment for their marital act of fellatio, while Margaret received an additional three years for having fellated Mr. Dunn. “With the Lovisis both in jail and their normal appeals exhausted, Virginia ACLU attorney Richard E. Crouch filed a habeas corpus petition in federal court in Richmond, reiterating the privacy right claims that the convictions had scorned. District Judge Robert Merhige—who had not yet heard “Doe”—cited Blackmun’s opinion in Roe and John Harlan’s concurrence in Griswold in acknowledging that “the right to privacy inherent in the federal constitution may well extend to heterosexual relations involving oral-genital contact between consenting adults,” and certainly “The right to privacy extends to sexual relations between husband and wife.” In light of Eisenstadt, there was also “some doubt,” Merhige went on, as to whether Virginia’s sodomy statute “could constitutionally be applied to private sodomous acts between heterosexual consenting adults.” The “rationale expressed in Eisenstadt,” Merhige explained, “extends to protect the manner of sexual relations between unmarried persons. It is not marriage vows which make intimate and highly personal the sexual behavior of human beings. It is, instead, the nature of sexuality itself or something intensely private to the individual that calls forth constitutional protection.”
Griswold and its progeny did protect “intimate sexual relations between consenting adults, carried out under secluded conditions,” Merhige stated, and while the “existence of seclusion in a sexual act … is a necessary prerequirement to that act’s being protected from state regulation by the Constitution,” in this present case the sexual relations “were not private,” because the Lovisis “relinquished the secluded aspect of their sexual relations” when the photographs were taken. Thereby, Merhige concluded, “the Lovisis did not meet the burden incumbent upon them to preserve the seclusion of their sexual acts. As such they relinquished their right to privacy in the performance of these acts, and they could lawfully be prosecuted.”
Merhige’s refusal to grant the habeas corpus petition was appealed to the Fourth Circuit Court of Appeals, but almost three years passed before the appellate court—some six weeks after the Supreme Court’s summary affirmance of “Doe”—upheld Merhige’s decision by a vote of 5 to 3. Chief Judge Clement F. Haynsworth—once an unsuccessful nominee for the Supreme Court seat that became Harry Blackmun’s—wrote for the majority that “What the federal constitution protects is the right of privacy in circumstances in which it may reasonably be expected,” and that the Lovisis’ privacy had dissolved when Earl Dunn had joined them. The three dissenters contended that with regard to the Lovisis’ twin convictions for engaging in fellatio with each other, “what would not be punishable sodomy in Dunn’s absence is not rendered punishable sodomy by his presence,” and the ACLU lawyers resolved to seek Supreme Court review. ACLU legal director Mel Wulf conceded that success was improbable, since likely “the Justices will just find the whole thing a little embarrassing,” and five months later, without dissent, the high court did indeed decline to review the Lovisis’ imprisonment and convictions.42
While both “Doe” and Lovisi got far more attention in the law reviews than they drew from the Supreme Court, by late 1975 several abortion cases were very much commanding the high court’s attention. Missouri was as active as any state in post-Roe efforts to restrict the performance of abortions, and in mid-1974 a Planned Parenthood affiliate and two physicians had gone into federal court to challenge a new state law mandating parental and spousal consent as well as several potentially intimidating regulatory measures aimed at doctors. With Circuit Judge—and future FBI and CIA director—William H. Webster dissenting from his two colleagues’ endorsement of the spousal and parental requirements, a special three-judge panel upheld most all of the provisions, the first time since Roe that such criteria had survived an initial court challenge. The plaintiffs appealed directly to the Supreme Court, and the high court stayed any enforcement of the Missouri law pending resolution of the appeal. Harry Blackmun quickly prepared a first draft of a per curiam summary disposition, hoping to reverse the Missouri panel before the June conclusion of the Court’s 1974–1975 year, but when only Justices Brennan, Stewart, and Marshall readily signed on to Blackmun’s initial circulation, the appeal—styled as Planned Parenthood of Central Missouri v. John Danforth, the Attorney General of Missouri, was held over for the 1975 Term and eventually scheduled for argument in March of 1976.
By the time that Danforth was finally argued, two other abortion cases were also before the Court. One, involving many of the same participants as Danforth, was a state appeal of an Eighth Circuit decision voiding a Missouri attempt to restrict Medicaid funding to only those abortions performed on therapeutic grounds. The second was an appeal by Massachusetts Attorney General Francis Bellotti from a three-judge court decree, requested by onetime Eisenstadt victor Bill Baird, that had voided a new 1974 state law making it a crime to perform an abortion on a woman under eighteen years of age without prior permission from both of her parents. The justices unanimously agreed that the Massachusetts case should be remanded so that the Massachusetts Supreme Judicial Court could have an opportunity to construe a brief provision allowing state court judges to grant exceptions in a sufficiently broad way that the statute might be saved, and while there was a heated but ultimately tangential disagreement in the Medicaid case about doctors’ standing to mount such a challenge on behalf of their patients, the justices nonetheless agreed that the merits of the case should be returned to the appellate court for fuller consideration.43
In Danforth, Harry Blackmun circulated a new first draft of a majority opinion in late May, and while Justices Brennan and Marshall quickly signed on, a full month passed—and the end of the term approached—before first Potter Stewart and then Lewis Powell also agreed to join Blackmun’s full opinion. John Paul Stevens had earlier indicated that he could support most sections of Blackmun’s draft, but not the one striking down Missouri’s parental consent provision, and while Warren Burger had not yet taken a clear position one way or the other, Stewart and Powell’s agreement—in the context of Byron White and William Rehnquist’s firm status as dissenters—gave Blackmun at least a five-vote majority across the board.44
On July 1, 1976, the Court handed down its first significant abortion decisions since Roe and Doe. Bellotti v. Baird and Singleton v. Wulff, the Missouri Medicaid case, understandably drew little attention, but Blackmun’s Danforth opinion, striking down both the spousal and parental consent requirements and a number of other measures, was treated by the press as a major ruling. Early on, in a section of the opinion endorsed by all nine justices, Blackmun stressed how the Court had “recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term.” The section voiding the spousal consent measure, however, was backed by just six justices, for only the day before Warren Burger had finally stated that he would join White and Rehnquist in dissent. Blackmun emphasized that the provision gave a husband “a veto power exercisable for any reason whatsoever or for no reason at all,” and hence was constitutionally unacceptable, “inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy.” Similarly, with regard to the parental consent requirement, Blackmun concluded that, the state “does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient.” A subsequent section also struck down a portion of the law that would have prohibited saline solution abortions after the twelfth week of gestation, and Justices Stewart and Powell added a short concurrence indicating that parental consultation mandates that also provided for judicially approved exceptions would indeed be permissible. Justice White’s brief and unremarkable dissent was joined by both Rehnquist and Burger, and John Paul Stevens wrote separately to articulate his acceptance of parental approval.45
Aside from Warren Burger’s shift, Danforth was an unmistakably clear reaffirmation of Roe and Doe, but the summer months of 1976 witnessed a new right to life congressional initiative to add an amendment prohibiting any Medicaid funding of abortions to the appropriations bill for the upcoming fiscal year. Illinois Republican Henry J. Hyde first successfully offered such a rider on the House floor in late June, but the Senate, by a wide margin, refused both then and again in late August to accept the House-passed ban. By mid-September the disagreement had been referred to a conference committee for a second time, and the deadlock was finally broken only when members from both houses agreed to endorse a slight weakening of the proviso so that abortions “where the life of the mother would be endangered” by an ongoing pregnancy would be excepted from the funding cutoff. Both the House and the Senate ratified that compromise, and passed the overall bill into law, overriding a presidential veto unrelated to the abortion tussle. The very day of that vote, abortion access proponents filed suit against the provision in federal court in New York, and on October 1, just as the Hyde Amendment was taking effect, District Judge John F. Dooling, Jr., enjoined any enforcement of the new prohibition until the challengers’ case could be heard. Three weeks later Dooling issued a full decision upholding the merits of the plaintiffs’ challenge, and the U.S. Supreme Court refused to issue an interim stay of Dooling’s injunction while the government pursued a direct appeal.46
In November 1976, over an angry dissent by Byron White that both William Rehnquist and Warren Burger also joined, a six-justice majority summarily affirmed a lower federal court decision voiding an Indiana statute that would have required all first trimester abortions to be performed in hospital-quality facilities.47 Early in 1977, however, the Supreme Court heard full-dress argument in three other abortion appeals, the most significant of which was Maher v. Roe, where a three-judge court had upheld a challenge to a Connecticut Welfare Department regulation which limited state Medicaid funding to only those abortions that were “medically necessary.” The high court also had under consideration a New York appeal of a three-judge decision that had voided a state statute prohibiting the distribution of any contraceptive to anyone under age sixteen as well as distribution by someone other than a pharmacist even to an adult. Resolving the New York case first, Justice Brennan on behalf of a six justice majority reiterated that “the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.” Access to contraceptives “is essential to exercise of the constitutionally protected right of decision in matters of child-bearing that is the underlying foundation of the holdings in Griswold, Eisenstadt v. Baird, and Roe v. Wade,” Brennan observed, and in a section speaking for only four justices he further held that “the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults.” Byron White, unlike John Stevens, acquiesced in that result, thus giving Brennan’s holding in Carey v. Population Services International an official majority, and while William Rehnquist and Warren Burger dissented in toto, a somewhat reluctant concurrence from Lewis Powell made for an ostensible 7 to 2 outcome, although Powell complained that “the extraordinary protection the Court would give to all personal decisions in matters of sex is neither required by the Constitution nor supported by our prior decisions.”48
Several weeks after the Carey ruling, the Court reversed both Maher and the two other abortion cases in 6 to 3 decisions written by Lewis Powell, with Justices Blackmun, Brennan, and Marshall in dissent. “Roe did not declare an unqualified ‘constitutional right to an abortion,’” Powell explained. “Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” Connecticut could indeed refuse to provide Medicaid funds for most abortions while nonetheless assisting poor women who carried their pregnancies to term, since Roe “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” Connecticut’s policy, Powell said, “places no obstacles—absolute or otherwise—in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth.” Powell acknowledged that Connecticut very well “may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult—and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.”
Powell emphasized, on behalf of the majority that decided both Maher and the two highly similar cases from Pennsylvania and St. Louis, Beal v. Doe and Poelker v. Doe, that “Our conclusion signals no retreat from Roe,” but the three dissenters vociferously disagreed. “Today’s decision seriously erodes the principles that Roe and Doe announced,” William Brennan contended, and Harry Blackmun warned that states and cities could now “accomplish indirectly what the Court in Roe … said that they could not do directly.” Under Medicaid, Brennan asserted, “the physician and patient should have complete freedom to choose those medical procedures for a given condition which are best suited to the needs of the patient.”49
The Court’s decisions in the Maher trio of cases sent an unmistakable signal that a federal funding limitation on Medicaid abortion payments, such as the 1976 Hyde Amendment, would now almost certainly pass judicial muster, and nine days later, as antiabortion lobbyists geared up to add another such rider to the appropriations bill for the upcoming year, the Court made that message even more explicit by vacating Judge Dooling’s earlier decision against enforcement of the Hyde ban and pointedly instructing him to reconsider his nine-month-old injunction in light of the Maher opinions. That very same day the Senate, which a year earlier had initially stood fast against the Hyde initiative, added prohibitory language—albeit with a much broader therapeutic exception than the House was espousing—to the pending appropriations measure, and rejected by 56 to 42 an effort to delete any such proviso. In early August Judge Dooling did indeed dissolve his earlier order, while nonetheless commencing a lengthy trial on the merits of the 1976 challenge to the Hyde Amendment, and except in the one dozen states that continued Medicaid financing for nontherapeutic abortions out of nonfederal funds, the 1976 limitation went into effect, tangibly restricting the reproductive choices faced by poor pregnant women in the other thirty-eight states.50
Pro-choice activists immediately recognized that the Maher decisions represented “a substantial victory for antiabortion forces” and one that likely would pay significant political dividends for right to lifers both in Congress and in many states. New York’s Howard Moody denounced the rulings as “discriminatory, unjust and dumb,” and St. Louis attorney Frank Susman, who had argued Poelker as well as Danforth, labeled the three judgments “a full scale retreat from the case law spawned by” Roe and Doe. NYU professor Sylvia Law said that activists “should stop thinking in terms of going to court so often and begin to put more energy into pressuring state legislatures,” but one major opinion poll showed that 55 percent of Americans opposed public funding for abortions. By midfall House and Senate conferees were well into their third month of unsuccessful efforts to agree upon restrictive Medicaid funding language for fiscal 1978, as the House hewed to a far harsher stance on a therapeutic exception than the Senate, and press accounts explained that the tenor of the Hyde debate, just like the Maher decisions, indicated how pro-choice forces were now very much on the defensive. “In nearly every state,” the New York Times reported, “abortion rights advocates have failed to equal the opponents’ network of dedicated activists,” and throughout the autumn fallout from that pattern could regularly be seen in the House of Representatives as the funding language deadlock dragged into a fourth month and then a fifth. Only in early December, with the Christmas holidays fast approaching, did the House and the Senate finally agree upon just what therapeutic standard a pregnant, indigent woman would have to meet before she could qualify for a federally funded Medicaid abortion: “severe and long-lasting physical health damage” if her pregnancy was carried to term.51
Time magazine noted the passage of the second Hyde Amendment by asserting that “people who believe that abortion is every woman’s right are in retreat,” and many supporters privately agreed. A large group of prominent theologians and ethicists, including John C. Bennett, James H. Cone, L. Harold DeWolf, Beverly Harrison, George Kelsey, Rosemary Reuther, and Kenneth L. Smith, issued an unusual public statement declaring that “We support the Supreme Court decisions of 1973” and announcing that they also backed public funding. Roe and Doe had been decided “in accord with sound ethical judgment,” and given the situations of many women’s lives, “abortion may in some instances be the most loving act possible.” More pointedly, the group also stated that “We are saddened by the heavy institutional involvement of the bishops of the Roman Catholic Church in a campaign to enact religiously based antiabortion commitments into law, and we view this as a serious threat to religious liberty and freedom of conscience.” Most revealingly, the statement closed by saying that “We call upon the leaders of religious groups supporting abortion rights to speak out more clearly and publicly in response to the dangerously increasing influence of the absolutist position.”52
One prominent Roman Catholic abortion opponent bitterly alleged that the Protestant theologians’ “Call to Concern” was “infected” with “simple bigotry,” but throughout the early months of 1978, most signs continued to indicate that antiabortion forces were making additional political headway. One survey showed that while more than 90 percent of abortions were now taking place during the first twelve weeks of pregnancy, only 30 percent were being performed in hospitals, with almost all of the others occurring in specialized clinics. The study emphasized, however, that half of those clinics were located in America’s thirty largest metropolitan areas, meaning that women in many locales might face a considerable trek in order to actually have access to abortion services. In mid-February one Cleveland clinic was firebombed by abortion opponents, but more mainstream right to life activists, utilizing a previously untried constitutional provision, sought to persuade state legislatures to pass resolutions instructing Congress to convene a constitutional convention that could adopt one or another of the proposed amendments that were languishing in Congress. By the spring of 1978 only thirteen of the necessary thirty-four states had enacted such resolutions, but in early June, as abortion opponents launched yet another annual effort to add a Hyde Amendment to the federal appropriations bill for fiscal 1979, Newsweek magazine reported that abortion access was “under greater attack than at any time since” January 1973 and that right to lifers were making “considerable headway.”53
Congress’s five-month wrestling match over the 1978 Hyde Amendment occasioned less emotion and news coverage than 1977’s, yet come mid-October generated the exact same result. However, the extremely protracted, still-ongoing New York trial of the two-year-old court challenge to the first Hyde Amendment before Judge Dooling began to engender increased bitterness and attention when abortion funding proponents used it to contend that antiabortion enactments like the successive Hyde bans violated the Constitution’s First Amendment protection against any governmental establishment of religion because of how they were premised upon an inescapably theological belief concerning the human status of an embryo or fetus. Early in the fall the Supreme Court heard argument in one new abortion case, involving a long-pending challenge to a Pennsylvania antiabortion law, and several weeks later the Court agreed to hear another state appeal in Bill Baird’s suit against Massachusetts’s parental consent statute, which the Court had first considered and remanded more than two years earlier. Antiabortion activists registered further political gains in the ensuing November elections, especially in the U.S. Senate, and as 1979 dawned, right to life forces appeared to still have the upper hand.54
On January 9, 1979, the Supreme Court handed down its decision in the Pennsylvania case, Colautti v. Franklin, affirming a lower court ruling that had found a statute prescribing criminal penalties should a doctor fail to preserve an aborted fetus that “may be viable” void for vagueness. Written by Justice Blackmun, the high court’s 6 to 3 majority opinion reiterated both Roe’s holding that “there is a right of privacy, implicit in the liberty secured by the Fourteenth Amendment” and Danforth’s explication of how the Court had purposefully left the point of viability “flexible for anticipated advancements in medical skill.” Roe and especially Doe, Blackmun emphasized, had “underscored the importance of affording the physician adequate discretion in the exercise of his medical judgment.” While viability was the point at which “there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support,” that determination inescapably involved a case-by-case evaluation, above and beyond the length of the pregnancy and/or the size of the fetus. Pennsylvania’s usage of so uncertain a phrase as “may be viable” as a criminal standard was constitutionally impermissible, for its law not only failed to “afford broad discretion to the physician,” but also “conditions potential criminal liability on confusing and ambiguous criteria.” Byron White’s dissent, in which both William Rehnquist and Warren Burger joined, complained that “the Court has considerably narrowed the scope of the power to forbid and regulate abortion that the States could reasonably have expected to enjoy under Roe and Danforth.”55
Six months later, just as a fourth consecutive annual round of congressional debate on yet another Hyde Amendment was getting under way, the Court also decided Bellotti v. Baird. Ruling against the constitutionality of Massachusetts’s parental consent law by an 8 to 1 margin, with only Byron White in dissent, the Court’s majority nonetheless was evenly split into two separate groups of justices, four of whom Lewis Powell spoke for in a controlling opinion and four of whom joined a brief statement by John Stevens simply concurring in the judgment. Both groups agreed that the statute’s requirement that any pregnant teenager wanting an abortion must seek the consent of both her parents, and could petition a judge for special approval only after such dual consent had been refused, was unacceptable. “Every pregnant minor is entitled,” Powell explained, “to go directly to the court for a judicial determination without prior parental notice, consultation, or consent,” and if a jurist judged a young woman to be “mature,” then the decision was indeed hers to make. Powell’s quartet, which also included Potter Stewart, Warren Burger, and William Rehnquist, contained at least one highly ambivalent member, for Rehnquist volunteered in a separate concurrence that he nonetheless would be more than happy to reconsider and overturn Danforth, but the Court’s basic holding was more than bolstered by the Stevens foursome. Stevens had privately told Powell that under Danforth the Massachusetts law was also constitutionally offensive because it “gives a judge an absolute veto over the abortion decision of every minor who does not receive the consent of both parents,” and that the Court should simply strike down the statute without signaling what revised procedures would pass muster. His brief public statement, which Justices Blackmun, Brennan, and Marshall also joined, made that point explicitly and forcefully: “It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties,” such as parents.56
In mid-October of 1979 Congress approved another Hyde Amendment, adopting even more narrowly restrictive language for fiscal year 1980 than had been applied in each of the two previous years. Six weeks later the Supreme Court announced that it would hear an Illinois appeal of a lower federal court decision that had struck down a state statute restricting Medicaid payments for poor women’s abortions, and New York journalists suggested that Judge Dooling’s long-pending decision in the case that had started out in 1976 as a challenge to the first Hyde ban ought to come down early in 1980. A New York Times/CBS News poll found that 69 percent of Protestants, and even 64 per cent of Roman Catholics, expressed agreement with the statement that “The right of a woman to have an abortion should be left entirely to the woman and her doctor,” but more extensive academic surveys continued to show that a significant plurality of Americans had complex and often highly ambivalent feelings on the subject. Every major national survey also indicated that there had been almost no measurable shifts in popular sentiment in the seven years since Roe and Doe,57 and researchers began focusing increased attention upon the small but highly motivated groups of activists, particularly on the right to life side, who were giving the abortion issue so much of its national visibility and intensity. A heavy majority of antiabortion activists, scholars determined, were married women of modest educational backgrounds who had children and were not employed outside the home. Rather than simply viewing these women’s “crusade against abortion” as manifesting a primary concern for fetuses, their activism should instead be seen as a “symbolic defense of traditional conceptions of morality,” one analyst reported, and also as reflecting a particular “hostility to freer sexual standards,” other observers contended. Fundamental to “pro-life ideology is a conservative, traditional notion of the role of the family and of women in society,” one thoughtful student explained. “There exist beneath the surface among pro-life groups a deeply rooted respect for and admiration of the traditional woman and the glories of motherhood. This is accompanied by a corresponding disrespect for and hatred of the modern woman as depicted by the feminist movement.” For many right-to-lifers, this commentator recounted, the abortion crusade was essentially “a means to an end,” for it was a highly visible way of “fighting the anti-family and anti-traditional image that abortion is seen to promote.” A less sympathetic professor made the same point more bluntly: “the meanings resonating from abortion politics have more to do with compulsory heterosexuality, family structure, the relationship between men and women and parents and children, and women’s employment, than they do with the fetus.”58
Nothing gave greater promise to the social policy agenda of the New Right, and especially to its focus on issues concerning the family and sexuality, than the flourishing Republican presidential candidacy of former California governor Ronald Reagan. His 1967 approval of the landmark Beilenson reform bill now long forgotten, Reagan by early 1980 had emerged as not only the leading Republican contender but also as a special favorite of right to life activists. In mid-January, antiabortionists were further provoked when New York’s Judge Dooling, in a written opinion that came to 214 typeset pages, ruled that all of the successive Hyde Amendments violated both the constitutional guarantee of equal protection and the First Amendment’s free exercise clause. Dooling stayed a reinstatement of his earlier 1976–1977 injunction against the Medicaid funding ban for thirty days so as to allow the government to appeal to the Supreme Court, but in mid-February, with Chief Justice Burger and Justices Rehnquist and Powell in dissent, the high court refused to further delay the impact of Dooling’s order. At the same time, however, the Court also placed the government’s appeal of the case, Harris v. McRae, on a highly accelerated schedule for full oral argument in late April, when the justices would also be hearing the similar Illinois case, Williams v. Zbaraz, which they had accepted three months earlier.59
The Court’s consideration of Harris and Zbaraz took place against a backdrop of virtually unanimous recognition, even by clerks who were hoping for a ruling against the funding bans, that the Court’s 1977 decisions in the Maher trio of cases were “nearly dispositive” of the questions posed by the two newest appeals. True, Harris and Zbaraz both involved challenges to statutes that prohibited Medicaid financing of even medically necessary abortions, whereas Maher had endorsed only a funding cutoff of nontherapeutic abortions for indigent women, but constitutionally the difference would be hard to distinguish. Hence there was no surprise at all within the private confines of the Court when the late April conference discussion that followed the oral arguments of Harris and Zbaraz registered a 5 to 4 majority in favor of affirming the prohibitions on government funding. Only in early June did Justice Stewart first circulate initial drafts of majority opinions in the two cases, and it was the final day of the month before the decisions were publicly announced.60
Stewart’s opinion in Harris, which was joined by Chief Justice Burger and Justices White, Powell, and Rehnquist, announced that “although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category.” Following very much in the tradition of Powell’s Maher holding, Stewart declared that “the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.” Citing both Griswold and the 1925 decision in Pierce, Stewart explained that “It cannot be said that because government may not prohibit the use of contraceptives … or prevent parents from sending their child to a private school,” that government therefore “has an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain contraceptives or send their children to private schools.” Just as in Maher, government could indeed selectively choose to subsidize some but not all medical undertakings. The Hyde Amendment’s approach “is rationally related to the legitimate governmental objective of protecting potential life,” for abortion “is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.” Stewart’s far briefer statement in Zbaraz made much the same point, but he closed the Harris opinion with a remark that spoke for himself and Lewis Powell, if not for the three other members of the narrow majority: “It is not the mission of this Court or any other to decide whether the balance of competing policy interests reflected in the Hyde Amendment is wise social policy. If that were our mission, not every Justice who has subscribed to the judgement of the Court today could have done so.”
All four minority justices—Brennan, Marshall, Blackmun, and Stevens—filed dissenting opinions, with Brennan asserting that Congress’s “deliberate effort to discourage the exercise of a constitutionally protected right” burdened and intruded upon a “pregnant woman’s freedom to choose.” John Stevens reminded his colleagues that with regard to any state desire to safeguard potential life, “Roe v. Wade squarely held that the States may not protect that interest when a conflict with the interest in a pregnant woman’s health exists.” Indeed, “Since Roe v. Wade squarely held that the individual interest in the freedom to elect an abortion and the state interest in protecting maternal life both outweigh the State’s interest in protecting potential life prior to viability,” the Harris majority was thereby doubly wrong.61
Medicaid payments for some medically necessary abortions continued for several weeks until the high court’s judgment was formally transmitted to New York and Judge Dooling’s earlier order was officially dissolved, but many commentators greeted the decisions with dismay. The New York Times pronounced the ruling “deeply troubling,” and one usually thoughtful law professor proclaimed that Harris was “inconsistent with the narrowest possible coherent reading of Roe,” namely that “government may not take action predicated on the view that abortion is per se morally objectionable.” Another normally understated supporter of abortion rights asserted that “by permitting the state to place the welfare of the fetus ahead of the health and welfare of the pregnant woman,” Harris “effectively overrules Roe v. Wade,” and antiabortion attorney Dennis Horan, who had helped Jay Floyd with Roe itself, concluded that Harris “makes it unmistakably clear that the state may disfavor abortion and favor protection of fetal life.” To Horan, Harris was an undeniable Court signal that legislatures in fact could “act upon a view of the human fetus so contrary to the underlying premises of its own decision in Roe.” Indeed, Horan observed, “Under Harris, the Constitution would not be violated even if a woman is effectively surrounded, as an island by a sea, with public pressure and inducements to abandon her decision to abort.”62
Despite such unpromising judicial developments, national polls continued to show significant majorities—62 percent in one New York Times/CBS survey in August—for a woman’s right to choose abortion, and earlier in the summer voters in Toledo, Ohio, in America’s first popular vote on abortion since 1972, had handed a resounding, two to one defeat to an antiabortion referendum proposal placed on the ballot by local right to lifers. Some public opinion polling also showed better than 60 percent opposition to any antiabortion constitutional amendment, but variations in question wording could generate remarkable differences, with 50 percent of respondents in that same survey answering “yes” when asked if they would support an amendment “protecting the life of the unborn child.” Congress was beginning its approval process for yet another Medicaid funding rider that would allow states to choose whether or not to provide public funds to cover indigent women’s abortions even in life-threatening circumstances, but the severe internal divisions that had long plagued the prolife cause were threatening to become more and more open, just as its beloved presidential candidate, Ronald Reagan, increasingly looked like a possible victor in the upcoming November election against unpopular Democratic incumbent Jimmy Carter. Monsignor George G. Higgins, a recently retired senior staff member of the National Conference of Catholic Bishops, publicly complained that some prolife groups, particularly those most insistent upon a no-exceptions constitutional amendment, “are being used as a vehicle to promote a much broader right-wing agenda.” Higgins cautioned that “the association of right to life with the right wing will ultimately undermine and not broaden support for pro-life positions,” and he most pointedly warned that “there is an increasingly grave danger that the right to life movement as a whole will be discredited as a right-wing sham.”63
On November 4, Ronald Reagan swept to an easy presidential victory over Jimmy Carter, and antiabortion forces could celebrate their most important political triumph since the Michigan referendum victory exactly eight years earlier. Three days later, Thurgood Marshall privately circulated to his eight colleagues a first draft of a majority opinion in H.L. v. Matheson, an appeal challenging a Utah criminal statute requiring doctors to give prior notification to the parents of any teenager for whom they were scheduled to perform an abortion. The Court had accepted the case some months before, and had heard oral argument four weeks earlier, after which the conference discussion had generated a tentative 5 to 4 tally in favor of reversing the Utah Supreme Court’s initial affirmance of the law. On the Monday after the election, however, Marshall’s majority began to crumble when first one member—Potter Stewart—and then another—Lewis Powell—informed him that they would not be able to support his opinion. “My vote at Conference was to reverse,” Powell explained, because the Utah statute, contrary to Powell’s 1979 opinion in Bellotti, did not provide for an “independent decision-maker,” such as a judge, for a pregnant teenager who did not want to notify her parents. Marshall’s draft, however, similarly contravened Powell’s Bellotti analysis by accepting the argument “that a pregnant minor, regardless of age or circumstances and without notice to parents, has a constitutional right to decide for herself, in consultation with a physician, whether to have an abortion.”
Stewart and Powell’s shift, Harry Blackmun privately commiserated to Marshall and Bill Brennan, “was not unanticipated,” but now it was likely that one or both of those brethren would join with the four original dissenters, for whom Chief Justice Burger was writing, thereby creating a new majority. Hence Marshall’s draft would be reduced to a minority statement on behalf of these three dissenters, and Blackmun asked Marshall to alter only a single phrase—changing “the pregnant woman’s right to make the abortion decision through private, unfettered consultation with her physician” to “the pregnant woman’s and her attending physician’s right to make the abortion decision through private, unfettered consultation”—so as to avoid “the ‘abortion on demand’ criticism that so frequently, and wrongfully, appears in public comment.”
More notably, however, Harry Blackmun also voiced some additional thoughts, which in part may well have been spurred by the election results one week earlier, and by their potential consequences for the Court. “I need not say how disappointed I have been in what I perceive to be the Court’s noticeable withdrawal in recent cases from the more positive position taken in Roe, Doe and Danforth,” he confessed to Marshall and Brennan. “I fear that the forces of emotion and professed morality are winning some battles. That ‘real world’ continues to exist ‘out there’ and I earnestly hope that the ‘war,’ despite these adverse ‘battles,’ will not be lost.”64
Early in 1981, just before the Supreme Court announced its actual resolution of H.L. v. Matheson, both the Massachusetts Supreme Judicial Court and the California Supreme Court relied upon state constitutional grounds to issue abortion funding decisions that explicitly rejected the Supreme Court’s decisions in Harris v. McRae and Maher v. Roe. The Massachusetts court, ruling in a case that had been filed nine days after Harris, found that that state’s Declaration of Rights “affords a greater degree of protection” to a woman’s right to choose abortion than did the U.S. Constitution as interpreted in Harris. California was one of ten states whose constitutions included language explicitly protecting “privacy,” and California’s high court voided legislative restrictions on state Medi-Cal funding of nontherapeutic abortions by bluntly declaring that “the asserted state’s interest in protecting a non-viable fetus is subordinate to the woman’s right of privacy.” The “morality of abortion,” the California majority noted, “is not a legal or constitutional issue; it is a matter of philosophy, of ethics, and of theology.… Once the state furnishes medical care to poor women in general, it cannot withdraw part of that care solely because a woman exercises her constitutional right to choose to have an abortion.”65
On March 23, 1981, the U.S. Supreme Court handed down its decision in H.L. v. Matheson, with Lewis Powell’s concurring opinion for himself and Potter Stewart expressing the case’s actual holding more clearly and succinctly than Warren Burger’s five-vote opinion for the full majority. Reiterating his Bellotti statement, Powell explained that “a State may not validly require notice to parents in all cases, without providing an independent decision-maker to whom a pregnant minor can have recourse if she believes that she is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests.”66
That modest and unoriginal declaration attracted far less attention than was being focused on a new right to life push aimed at winning enactment of a congressional statute proclaiming that personhood begins at conception. Originally drafted by a young Harvard Law School graduate and then quickly adopted by Illinois Representative Hyde and North Carolina Senator Helms, the human life bill proposed to mandate in statutory form the same declaration that prolife forces previously had assumed a constitutional amendment would be required to accomplish. Most legal commentators, including many who opposed abortion, insisted that any such statutory enactment would be unconstitutional, but right-wing North Carolina Republican Senator John P. East nonetheless scheduled eight days of Senate subcommittee hearings on the measure, beginning in late April 1981. Conservative University of Texas law professor Charles Alan Wright, who had won notoriety helping represent Richard Nixon during Watergate, told the subcommittee that while he was “quite unpersuaded” by Roe v. Wade, as it failed to show “what abortion has to do with privacy,” he also was troubled by the “intemperate criticism” the decision had attracted and was “skeptical about the ability of men to form judgments that concern an experience they can never have.” Nonetheless, Wright emphasized that the human life bill was patently unconstitutional. Some weeks later, two former Solicitors General, Archibald Cox and Robert H. Bork, the latter of whom had once fired the former as Watergate special prosecutor, both appeared before the subcommittee to also oppose the bill. Neither man supported Roe, but Cox labeled the human life proposal “a radical and dangerously unprincipled attack upon the foundations of our constitutionalism.” Bork told the senators that Roe was “an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of State legislative authority” and “perhaps the worst example of constitutional reasoning I have ever read,” but he too denounced the human life bill as threatening “the destruction of the Court’s entire constitutional role.”67
In early July that subcommittee approved the measure on a partisan, 3 to 2 vote, but the bill languished in the full Senate Judiciary Committee as other Republicans such as Utah’s Orrin Hatch focused instead on antiabortion constitutional amendments. In the fall of 1981 a subcommittee which Hatch chaired held nine days of hearings on the four different constitutional proposals that were pending, and in mid-December the subcommittee endorsed Hatch’s own measure, a relatively moderate amendment that would upend Roe by authorizing each state to regulate or prohibit abortion to whatever extent it chose. Public opinion polls indicated that some 75 percent of American citizens opposed any amendment that would give Congress “the authority to prohibit abortions,” and that 77 percent of respondents agreed that “The decision to have an abortion should be left to the woman and her physician,” but three months later the full judiciary committee approved Hatch’s proposal on a vote of 10 to 7. In mid-September 1982, however, when a more extreme human life amendment sponsored by North Carolina’s Jesse Helms became the first constitutional proposal to be brought up for a full vote on the Senate floor, it went down to a 47 to 46 defeat, well short of the two-thirds support that a constitutional amendment was required to attain.68
Not long before that Senate vote, the New Jersey Supreme Court took the same step that Massachusetts’ and California’s high courts had taken eighteen months earlier and invoked state constitutional grounds in voiding a legislative restriction that barred Medicaid funding for medically necessary abortions.69 Several weeks later, on the final day of November 1982, the U.S. Supreme Court heard oral argument in three abortion appeals from Virginia, Ohio, and Missouri which it had accepted six months previously. Since the Court’s decision in H.L. v. Matheson a year and a half earlier, one very significant change had taken place: in June 1981 Justice Potter Stewart had announced his retirement, and President Ronald Reagan had nominated a little-known Arizona state court judge, Sandra Day O’Connor, to be the first female justice in Supreme Court history. Some right to life groups had opposed O’Connor on the grounds that she had once voted against adding an antiabortion amendment to an unrelated bill while a member of the Arizona legislature, but O’Connor herself had made no substantive comment on Roe or its progeny. In late September 1981 O’Connor’s nomination had been unanimously confirmed by the U.S. Senate, and by the time that the Supreme Court heard argument in Simopoulos v. Virginia, City of Akron v. Akron Center for Reproductive Health and Planned Parenthood Association of Kansas City v. Ashcroft, she had been a member of the high court for fourteen months.
Dr. Chris Simopoulos, represented by Roy Lucas, was appealing a criminal conviction for having initiated a saline abortion of a twenty-two-week pregnancy at his unlicensed clinic rather than at a hospital, as Virginia law required for all post-first trimester procedures. The seventeen-year-old patient had subsequently expelled the fetus in a motel room, where she left it in a wastebasket, and the motel had notified the police. The Akron case involved a comparable hospitalization requirement, which two lower courts had upheld, as well as ordinances mandating either parental or judicial approval for an abortion on any girl under the age of fifteen, and imposing a twenty-four-hour waiting period on all women who sought abortions, both of which had been voided by the Sixth Circuit Court of Appeals. Ashcroft likewise included constitutional challenges to both Missouri’s second trimester hospitalization requirement, which the Eighth Circuit Court of Appeals had struck down, and a parental consent provision, which the appellate court had upheld.
One journalistic observer, sitting through the three hours of presentations—Simopoulos at ten a.m., Akron at eleven a.m., and Ashcroft after lunch at one p.m.—reported that “the long argument often seemed to lack focus,” but the one exceptional highlight of the day—and perhaps the most dramatic moment in abortion litigation since Roe and Doe had themselves been decided—came when the Reagan administration’s Solicitor General, Rex E. Lee, spoke for ten minutes as an amicus in defense of Akron’s antiabortion regulations. Lee’s office, in line with the administration’s aggressive right to life stance, had already submitted a brief backing Akron’s assertions, but when Lee personally stood up to make such claims on behalf of the United States government, Harry Blackmun challenged him forcefully.
“Mr. Solicitor General, are you asking that Roe v. Wade be overruled?”
“I am not, Mr. Justice Blackmun.”
“Why not?”
“That is not one of the issues presented in this case,” Lee responded, indicating it would not be proper for an amicus to introduce a question that the principal parties had not raised. Blackmun, however, repeated the point: “It seems to me that your brief in essence asks either that or the overruling of Marbury against Madison,” the landmark 1803 decision that had established the Court’s power of judicial review. “Neither, neither,” Lee replied. Blackmun voiced another query, and Lee again stated that “we are not urging that Roe v. Wade be overruled.… That is an issue for another day.” Lee’s time was about up, but Blackmun’s parting question was as pointed as could be. “Mr. Lee, did you write this brief personally?” “Very substantial parts of it, Justice Blackmun,” the Solicitor answered, and no one in the courtroom could have doubted that the Reagan administration’s advocacy of a rollback for women’s constitutional right to choose had certainly produced some very strong feelings.70
When the Court, after an unusual delay, finally convened on December 16 to vote on the long list of questions presented by the three cases, the nine justices quickly agreed, with only John Stevens in dissent, that Dr. Simopoulos’s conviction should indeed be affirmed. A solid five-justice majority—Brennan, Marshall, Blackmun, Powell, and Stevens—favored voiding both Akron’s and Missouri’s hospitalization requirements as well as Akron’s parental consent and waiting period provisions. Along with Byron White and Bill Rehnquist, Sandra O’Connor voted to uphold all of those limitations, and in Ashcroft, where Justice Powell believed that three other restrictions—one requiring the presence of a second physician for late-term abortions, another requiring pathology reports, and a third involving Missouri’s provisions for parental or judicial consent—should survive judicial scrutiny, Warren Burger’s eventual agreement with Powell would mean that a separate lineup would control the disposition of those discrete points. All three opinions were assigned to Lewis Powell, and three months later—in early March 1983—he circulated initial drafts that were accepted by his colleagues following only modest revisions. Three months later—on June 15, 1983—the trio of decisions was publicly announced.71
City of Akron v. Akron Center for Reproductive Health became the lead decision among the 1983 cases, and Powell’s opinion for the six-member majority—including Warren Burger as well as Brennan, Marshall, Blackmun, and Stevens—stressed that “the doctrine of stare decisis … is a doctrine that demands respect in a society governed by the rule of law. We respect it today, and reaffirm Roe v. Wade.” Indeed, Powell added, there were “especially compelling reasons” for adhering to the 1973 holding, for Roe “was considered with special care,” including the two oral arguments and “extensive briefing.” Powell quoted from John Harlan’s famous dissent in Poe before emphasizing that “The decision in Roe was based on this long-recognized and essential element of personal liberty,” and he firmly castigated Sandra O’Connor’s dissenting opinion, in which both White and Rehnquist also joined, for articulating an approach which “is wholly incompatible with the existence of the fundamental right recognized in Roe.” Powell noted how “the dissent would uphold virtually any abortion regulation,” and he asserted that “the effect of the dissent’s views would be to drive the performance of many abortions back underground free of effective regulation and often without the attendance of a physician.”
Powell acknowledged that the safety of second-trimester abortions had increased dramatically in the ten years since 1973, thus undercutting much of the significance that Roe had attached to the end of the first trimester, but he declared that it was nonetheless prudent “to retain Roe’s identification of the beginning of the second trimester as the approximate time at which the State’s interest in maternal health becomes sufficiently compelling to justify significant regulation of abortion.” Thus Roe’s “trimester standard,” Powell said, “continues to provide a reasonable legal framework for limiting a State’s authority to regulate abortions. Where the State adopts a health regulation governing the performance of abortions during the second trimester, the determinative question should be whether there is a reasonable medical basis for the regulation.” The Sixth Circuit, in upholding Akron’s hospitalization provision, had “misinterpreted” the Supreme Court’s view of second trimester regulation, for particularly because of the “primary burden” of increased cost, the hospitalization requirement clearly represented “a serious obstacle” to women seeking abortions of second trimester pregnancies. However in Ashcroft, “given the compelling interest that the State has in preserving life,” Missouri’s requirement that a second physician be present at each rare third trimester abortion was not unconstitutional, nor did the cost incurred by a mandatory pathology examination “significantly burden a pregnant woman’s abortion decision.”
Sandra O’Connor’s dissent picked up on a phrase that the Court had first used seven years earlier in Bellotti I and then again in Maher—whether or not an abortion regulation was an “undue burden” for a pregnant woman—and asserted that “this ‘unduly burdensome’ standard should be applied to the challenged regulations throughout the entire pregnancy without reference to the particular ‘stage’ of pregnancy involved.” Blackmun’s trimester format, she alleged, “cannot be supported as a legitimate or useful framework,” and was “completely unworkable.” Most pointedly, O’Connor claimed that the distinctions which Roe had identified between different stages of pregnancy were diminishing at both ends of the spectrum, and that “It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future.” Thus, O’Connor alleged, “The Roe framework, then, is clearly on a collision course with itself,” and ought to be dispensed with. “Even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe.”72
Many legal commentators disregarded O’Connor’s attack on Roe and viewed the holdings as “a major victory for pro-choice advocates,” with one writer confidently opining that “as a result of the Court’s recent decisions, a woman’s right to an abortion is now secured.”73 Less than two weeks after the rulings were announced, the U.S. Senate rejected Orrin Hatch’s proposed constitutional amendment, aimed at returning legal control of abortion to the states, by a tally of 50 to 49, eighteen votes short of the two-thirds support necessary for approval. That vote effectively signaled an end to meaningful congressional efforts to overturn Roe and its legacy, and the fall of 1983 was as quiet a period for abortion battles as anytime in over a decade.74
On October 3, however, in an otherwise obscure move, the U.S. Supreme Court agreed to hear a New York district attorney’s appeal of a state high court ruling reaffirming and extending an earlier decision that had decriminalized all consensual adult sexual relations, heterosexual or homosexual, that took place in relative seclusion. Only four justices—White, Burger, Rehnquist, and O’Connor—the minimum number necessary, voted to hear the appeal, and while neither their number nor their names were publicly stated, within the Court no one thought that that constellation of justices had expressed interest in the case in order to affirm it. The New York decision, People v. Uplinger, had voided a statute against loitering in public for the purpose of soliciting “deviate sexual intercourse”; three years earlier, New York’s highest court, in a far more significant case, People v. Onofre, which the U.S. Supreme Court had declined to review, had invalidated several convictions under the state’s sodomy statute—which already included an express exception for married couples—that had involved consensual oral sex. An intermediate appellate court had already reversed Ronald Onofre’s conviction for performing fellatio on another male at his own home on the grounds that “Personal sexual conduct is a fundamental right, protected by the right to privacy because of the transcendental importance of sex to the human condition, the intimacy of the conduct, and its relationship to a person’s right to control his or her own body,” and the New York Court of Appeals affirmed that decision. Constitutional privacy safeguarded “a right of independence in making certain kinds of important decisions,” and in light of the Supreme Court’s rulings in Eisenstadt and Stanley, which had protected “individual decisions as to indulgence in acts of sexual intimacy by unmarried persons and as to satisfaction of sexual desires by resort to material condemned as obscene by community standards when done in a cloistered setting, no rational basis appears for excluding from the same protection decisions—such as those made by defendants before us—to seek sexual gratification from what at least once was commonly regarded as ‘deviant’ conduct, so long as the decisions are voluntarily made by adults in a noncommercial, private setting.”
That New York majority in Onofre was not alone. The New Jersey Supreme Court had already voided that state’s fornication statute on similar constitutional grounds, holding that the right to privacy’s protection of “independent choice” and “personal autonomy,” especially pursuant to “the far more expansive concept of individual autonomy which the United States Supreme Court established in Roe,” “necessarily encompassed” so “fundamental” a personal choice as a decision to fornicate. Citing the references to childbearing in Carey, the Supreme Court’s 1977 contraceptives ruling, as well as Roe, the New Jersey court had observed that “It would be rather anomalous if such a decision could be constitutionally protected while the more fundamental decision as to whether to engage in the conduct which is a necessary prerequisite to childbearing could be constitutionally prohibited. Surely, such a choice involves considerations which are at least as intimate and personal as those which are involved in choosing whether to use contraceptives.” Similarly, just seven months before the New York ruling, the Pennsylvania Supreme Court had struck down their state’s criminal law against “deviate sexual intercourse” between unmarried individuals, saying that it served only “to regulate the private conduct of consenting adults.” The Pennsylvania majority quoted at length from John Stuart Mill’s 1859 essay On Liberty and explained that “This philosophy … properly circumscribes state power over the individual.” The “marital status of voluntarily participating adults would bear no rational relationship to whether a sexual act should be legal or criminal,” and “to suggest that deviate acts are heinous if performed by unmarried persons but acceptable when done by married persons lacks even a rational basis, for requiring less moral behavior of married persons than is expected of unmarried persons is without basis in logic.” If the oral and anal sex acts were truly harmful, the Pennsylvania judges observed, “then they should be proscribed for all persons, not just the unmarried.”
But Onofre, unlike State v. Saunders in New Jersey and Commonwealth v. Bonadio in Pennsylvania, had involved male homosexuals, not unmarried heterosexuals, and two members of New York’s highest court had objected vociferously to their colleagues’ analysis. “The right of sexual choice established today is really a wholly new legal concept bearing little resemblance to the familiar principles enunciated in Griswold,” Judge Domenick Gabrielli complained on behalf of himself and Chief Judge Lawrence Cooke. “The decisions in Griswold, Roe and Stanley cannot fairly be interpreted as collectively establishing an undifferentiated right to unfettered sexual expression,” and “western man has never been free to pursue his own choice of sexual gratification without fear of State interference.” His colleagues’ majority holding, Gabrielli protested, “represents a radical departure from cases such as Griswold and Roe.”75
Rehnquist, Burger, White, and O’Connor’s votes to accept Uplinger did not mean that other justices were not equally interested in the issue that the case presented. Justices Marshall, Brennan, and Stevens had all dissented from the Court’s 1976 summary affirmance of Doe v. Commonwealth’s Attorney, and in 1977 both Marshall and Brennan had voted against the Court’s refusal to hear the appeal of a Washington state public school teacher who had been dismissed simply because he was known to be gay. One year later, when Marshall and Brennan were again alone in wanting the Court to hear an appeal by two Pennsylvania library employees who had been fired from their jobs because they had had a child and had begun living together, without benefit of marriage, while the man was still legally married to someone else, Marshall had filed an angry dissent. “Petitioners’ rights to pursue an open rather than a clandestine personal relationship and to rear their child together in this environment closely resemble the other aspects of personal privacy to which we have extended constitutional protection,” Marshall argued. “Individuals’ choices concerning their private lives deserve more than token protection from this Court.”
Early in 1980 both Brennan and John Stevens had voted to hear an appeal from a North Carolina man who had been convicted of committing a “crime against nature” after a trial judge had refused to instruct the jury that the alleged offense—heterosexual fellatio—would not be a crime if the jury found that it had been consensual, and just a few weeks after their four colleagues had voted to accept Uplinger, Marshall and Harry Blackmun had joined Brennan in dissenting from the Court’s refusal to hear the appeal of a now-married couple who had both been fired from the Amarillo, Texas, police department after elaborate surveillance had shown that the two officers were guilty of off-duty cohabitation. “There is not the slightest hint in either the language or the prior interpretations of the city’s rules that they forbid private, off-duty, lawful, and consensual sexual relations,” Brennan complained. Moreover, he asserted with some emphasis, not only was the petitioners’ conduct wholly legal, it also involved “fundamental rights.”76
Many academic commentators and several federal judges had sought to project what the Supreme Court would do if and when it chose to decide a gay rights or otherwise novel sexual privacy case, and most law review writers heavily downplayed the significance of the 1976 summary affirmance in Doe. Federal District Judge Gerhard Gesell, who some years earlier had ruled in favor of Dr. Vuitch, addressed the question in a case brought by a gay Navy ensign who had been dismissed from the service after acknowledging his sexuality. In Griswold, Eisenstadt and Roe, Gesell noted, the Supreme Court had “explicitly recognized the right of privacy in sexual matters by repeatedly prohibiting interference by the state with relationships between men and women.” The Doe affirmance, however, suggested that the sexual privacy right was limited to heterosexuals, and thus with evident reluctance Gesell explained that he was “constrained to conclude that an individual’s right to privacy does not extend to homosexual conduct even where it occurs in private between consenting adults.”
One gay rights strategist, noting how an unrelated 1975 Supreme Court ruling, Hicks v. Miranda, indeed meant that the Doe affirmance was substantively binding on lower federal courts, warned his colleagues that “we must be more selective in our test cases” than had been true with Doe and firmly recommended that they “place more emphasis on state courts and constitutions.” A writer in the Journal of Homosexuality, however, asserted that “the degree of legal progress is truly remarkable” and blithely declared that “judicial attitudes and, consequently, judicial decisions will change as public attitudes change.” A far more thoughtful legal scholar, however, Thomas C. Grey, noted that the Supreme Court’s action in Doe had been followed by its refusals to hear both Lovisi and the Pennsylvania couple’s appeal. “These cases strongly suggest,” he contended, “that the Court meant what it said in Griswold: that the right of privacy protects only the historically sanctified institutions of marriage and the family, and has no implications for laws regulating sexual expression outside of traditional marriage.” Too many commentators, he concluded, had overlooked the Court’s “rigorous abstention from any support for sexual freedom in the privacy cases” and kept envisioning libertarian themes in those holdings despite “almost no encouragement by the Court.”77
More substantively notable than any other gay rights ruling, pro or con, between Doe and the Supreme Court’s acceptance of Uplinger, however, was the 1982 decision of Dallas federal District Judge Jerry Buchmeyer in Donald F. Baker v. Henry Wade. Don Baker was a religious, thirty-five-year-old Navy veteran and former schoolteacher. In late 1979, shortly before becoming president of the Dallas Gay Alliance, Baker had filed a declaratory judgment action—just like the late Henry McCluskey’s Buchanan suit of a decade earlier—against Dallas County District Attorney Henry Wade, of Roe fame, seeking invalidation of Texas’s sodomy statute, which in 1974 had been explicitly amended so as to cover only homosexual—and not heterosexual—acts. In advance of trial, Baker’s attorney, James C. Barber, took a deposition from prosecutor Wade, and while Judge Buchmeyer noted in his subsequent opinion that Baker himself had been “a very sincere” and “very credible witness,” Buchmeyer’s opinion made especially trenchant use of Henry Wade’s own comments about the Texas law he was supposed to enforce. Asked whether he could explain “how this statute furthers the state interest, if any, in procreation by permitting heterosexual sodomy, but prohibiting homosexual sodomy?” Wade frankly replied that “I didn’t even know it permitted either one.” Queried as to why the law “prohibits deviate sexual intercourse between persons of the same sex, but … does not prohibit private deviate sexual intercourse by members of a different sex,” Wade answered that “I don’t think procreation is involved in either one of them, is it?” Lastly, questioned with regard to the law’s complete distinction between otherwise analogous heterosexual and homosexual acts, as to “What rational basis is there for that classification, if you know of any?” Wade candidly responded, “I don’t know of any.”
Judge Buchmeyer’s analysis of the rationality of Texas’s sex laws also led him to note that pursuant to the relevant statute, bestiality was a crime only if it occurred in public. “Thus, under the Texas Penal Code, one may engage in private sexual acts with ‘an animal or fowl’ … but may not engage in private oral or anal sex with a consenting adult of the same sex.” More traditionally, Buchmeyer further pointed out that the Virginia statute at issue in Doe had criminalized all sodomous activity, rather than singling out only homosexuals, and he indicated that the precedental value of the Doe affirmance might well have been undercut by the Supreme Court’s subsequent denial of the request that it review the New York Court of Appeals decision in Onofre. Texas’s criminal distinction between otherwise identical gay and straight sexual activities violated the constitutional guarantee of equal protection, and Texas’s law similarly contravened the constitutional guarantees contained in Griswold and subsequent progeny such as Carey. “The right of two individuals to choose what type of sexual conduct they will enjoy in private is just as personal, just as important, just as sensitive” as a couple’s decision “to engage in sex using a contraceptive to prevent unwanted pregnancy.” In short, “homosexual conduct in private between consenting adults is protected by a fundamental right of privacy.”78
In mid-January of 1984 the U.S. Supreme Court heard oral argument in New York v. Uplinger, but it was already clear that a narrow majority—Brennan, Marshall, Blackmun, Powell, and Stevens, the five justices who had not favored taking the case—were in agreement that the Court’s prior acceptance of the appeal should simply be dismissed without addressing the actual merits. New York Attorney General Robert Abrams was opposing the effort by Buffalo prosecutors to preserve the statute, and the three-paragraph decision that had been rendered by New York’s highest court was so linked to Onofre as to create serious doubt as to whether Uplinger could be meaningfully reviewed without also reconsidering a case the Court had already declined to hear. William Brennan circulated an initial draft of a brief per curiam dismissal to his colleagues in early March, and at the end of May, after John Stevens had prepared a short concurrence, the Court handed down a little-noted 5 to 4 rejection of New York v. Uplinger. Justices White, Rehnquist, and O’Connor, plus Chief Justice Burger, insisted in dissent that the constitutional question should be decided, but the majority cited Onofre and stated that “a meaningful evaluation of the decision below would entail consideration of the questions decided in that case” as well. Thus Uplinger “provides an inappropriate vehicle for resolving the important constitutional issues raised by the parties.”79
Less than three months later, however, a relatively new member of the federal Court of Appeals for the District of Columbia Circuit, former Solicitor General and Yale law professor Robert H. Bork, who had been nominated to the prestigious appellate bench by President Reagan and unanimously confirmed by the U.S. Senate early in 1982, authored an outspokenly antithetical opinion that received front page coverage in the New York Times. Joined by both a circuit court colleague, Antonin Scalia, and a third judge, Bork affirmed a lower court’s dismissal of a suit brought by a Navy petty officer, James L. Dronenburg, who had been discharged from the service after acknowledging that he had had repeated homosexual encounters in a California barracks. “Whatever thread of principle may be discerned in the right-of-privacy cases,” Bork wrote, “the Supreme Court has never defined the right so broadly as to encompass homosexual conduct.” He noted John Harlan’s remark in Poe that homosexuality was of course subject to criminal punishment, and described the 1976 Doe affirmance as a ruling on the constitutional merits. But Bork was just as interested in critiquing the Supreme Court’s privacy jurisprudence as in rebuffing Dronenburg’s appeal, and hence he went on to offer a comprehensive analysis of those precedents, beginning with Griswold. He discussed the imprecision of William O. Douglas’s “penumbra,” and stated that while Griswold had stressed the importance of marriage, “It did not indicate what other activities might be protected by the new right of privacy and did not provide any guidance for reasoning about future claims laid under that right.” Bork quoted the signal passages from both Eisenstadt and Roe, but avowed that in Roe “the Court provided no explanatory principle that informs a lower court how to reason about what is and what is not encompassed by the right of privacy.” He reiterated that none of the Supreme Court’s precedents “covers a right to homosexual conduct,” and volunteered that it was “impossible to conclude that a right to homosexual conduct is ‘fundamental’ or ‘implicit in the concept of ordered liberty’ unless any and all private sexual behavior falls within those categories, a conclusion we are unwilling to draw.” Bork highlighted one assertion in Dronenburg’s brief—“That the particular choice of partner may be repugnant to the majority argues for its vigilant protection, not its vulnerability to sanction”—and observed that “This theory that majority morality and majority choice is always made presumptively invalid by the Constitution attacks the very predicate of democratic government.” Bork summed up his panel’s rejection of Dronenburg’s appeal by declaring that “If the revolution in sexual mores that appellant proclaims is in fact ever to arrive, we think it must arrive through the moral choices of the people and their elected representatives, not through the ukase of this court.”80
Dronenburg appealed Bork’s decision to the entire D.C. Circuit Court, but by a vote of seven to four the judges refused to grant the case a full en banc rehearing. The four dissenters, however, filed a remarkable opinion of their own, contending that “the panel’s extravagant exegesis on the constitutional right of privacy was wholly unnecessary to decide the case” and that “the opinions of this court are not proper occasions to throw down gauntlets to the Supreme Court.” They mockingly admonished Bork that “Judicial restraint begins at home,” and labeled his opinion “an abdication of judicial responsibility,” asserting that “Instead of conscientiously attempting to discern the principles underlying the Supreme Court’s privacy decisions, the panel has in effect thrown up their hands and decided to confine those decisions to their facts.” Bork and Scalia filed a defensive rebuttal, insisting that the Doe affirmance was indeed binding and reiterating that from Griswold onward, “no principle had been articulated that enabled us to determine whether appellant’s case fell within or without that principle.” Bork admitted that “It is difficult to know how to reach the conclusion that no principle is discernible in decisions without seeming to criticize those decisions,” but he maintained that “our analysis of the privacy cases was both required and accurate.”81