While the federal courts were increasingly having to face the possible sexual implications of Griswold and Roe, antiabortion activists intensified their attacks on women’s right to choose. Anonymous terrorists bombed pro-choice facilities in Norfolk and Annapolis, and, just in advance of the Democratic National Convention, New York’s Roman Catholic archbishop, John Cardinal O’Connor, announced that “I don’t see how Catholics in good conscience can vote for a candidate who explicitly supports abortion.” Once Democratic nominee “Walter Mondale selected New York Representative Geraldine Ferraro, an abortion rights supporter and a Catholic, as his running mate, church sniping at pro-choice politicians intensified even further, and in early September eighteen Roman Catholic bishops from across the Northeast released a public statement announcing that abortion was “the critical issue” in the upcoming November balloting. Soon after the election, a new rash of abortion clinic bombings spread across the country, and pro-choice organizations reacted angrily when federal law enforcement officials insisted that there was no evidence that the terrorist attacks represented any sort of even loose-knit conspiracy. On December 30, federal agents charged a twenty-one-year-old man with carrying out four bombings of clinics in Pensacola, Florida, and early in 1985 they arrested three additional collaborators. After a man representing the “Army of God” claimed responsibility for an explosion at a Washington, D.C., clinic, even President Reagan publicly denounced the ongoing attacks, and several weeks later self-styled lay minister Michael Bray and two other men were charged with placing bombs at seven Washington-area clinics.82

More propitious attention was being drawn to the right to life cause by a new film, The Silent Scream, which purported to depict fetal pain but which drew most of its power from the narration of onetime NARAL activist Bernie Nathanson, now an antiabortion crusader. But terrorist violence against clinics remained the principal abortion story, and in early March a congressional subcommittee opened hearings on the subject, with one of the first witnesses being Joseph Scheidler, president of the Pro-Life Action League and author of a handbook entitled Closed: 99 Ways to Stop Abortion. Scheidler acknowledged that he was “aware of attacks against abortion facilities,” and told the subcommittee that he very much understood “the moral outrage at the waste of human life that prompts this response. Some have condemned the destruction of abortion facilities. The Pro-Life Action League and others refuse to condemn it because we refuse to cast the abortionists in the role of victim when they are, in fact, victimizers.” Scheidler admitted that “Nonviolent direct action to end abortion is preferable to bombing abortion chambers,” but he warned that if such methods were unavailable, “the violence of abortion will inevitably be opposed by other means.” Six weeks later the two principal Pensacola bombers were convicted and sentenced to ten years in prison, and in mid-May Michael Bray was found guilty of masterminding the Washington-area bombings and also received a ten-year sentence.83

Early in 1985, with Lewis Powell temporarily absent because of illness, the U.S. Supreme Court in a 4 to 4 tie affirmed without opinion a circuit court decision that the Oklahoma City school system could not fire teachers simply because they expressed public support for gay rights. Only Justices Brennan and Marshall, however, voted to hear an appeal by a high school guidance counselor who had been fired simply because she had told several colleagues that she was bisexual. Privately, the Court also deadlocked over whether to dismiss Pennsylvania’s appeal of a Third Circuit ruling that had voided a host of state antiabortion regulations. For the first time since Sandra O’Connor’s appointment, Warren Burger voted with Justices White, Rehnquist, and O’Connor in an abortion case, and in mid-April the Court simply announced that it would set the case, Thornburgh v. American College of Obstetricians and Gynecologists (ACOG), for full argument in the fall. Several weeks later the Court also accepted a similar appeal from Illinois, and in midsummer the Reagan Justice Department made front-page news with the announcement that this time its support of the appeals would include an explicit request that the high court overrule Roe v. Wade.⁸⁴

Also in early 1985, in a clearly ominous action, the sixteen-member Fifth Circuit Court of Appeals agreed to grant an en banc rehearing to a challenge against Judge Buchmeyer’s invalidation of Texas’s sodomy statute in Baker v. Wade. Neither Henry Wade nor Texas Attorney General Jim Mattox had pursued an appeal of Buchmeyer’s 1982 ruling, but a district attorney from Amarillo, along with a Dallas lawyer representing “Dallas Doctors Against AIDS,” had unsuccessfully sought to persuade first Buchmeyer and then a three-judge circuit court panel to allow them to intervene in defense of the antigay law. Far more promising than the Fifth Circuit’s portentous move, however, was an outspoken opinion by Richmond federal District Judge Robert Merhige, sustaining a declaratory judgment suit against the constitutionality of Virginia’s fornication and cohabitation statutes. The “right to engage in heterosexual intercourse,” Merhige explained, was “necessarily implicit” in the “right to bear or beget children.” Hence, Merhige said, “the constitutional right of privacy extends to a single adult’s decision whether to engage in sexual intercourse.”⁸⁵

Even more significant than Merhige’s ruling, however, was a 2 to 1 late May decision by a three-judge panel of the Eleventh Circuit Court of Appeals holding that Georgia’s criminal sodomy statute would have to satisfy the all-but-impossible “compelling state interest” test in order to be constitutional. Written by Judge Frank M. Johnson, Jr., and joined by former Chief Judge Elbert P. Tuttle, two of the most remarkable judicial champions of the southern civil rights era, the ruling vindicated an ACLU-sponsored test case that had begun after an extraordinary series of events befell a twenty-eight-year-old Atlanta man, Michael Hardwick, in 1982. Early on the morning of July 5, Hardwick left a gay bar carrying a beer. A twenty-three-year-old Atlanta patrolman, Keith Torrick, saw Hardwick and gave him a ticket for drinking in public. It listed twelve noon on Wednesday, July 13, for Hardwick’s court appearance, but early on Tuesday afternoon, July 13—for July 13 was Tuesday—officer Torrick obtained a warrant for his arrest after Hardwick failed to appear in Atlanta Municipal Court. Hardwick was not home when Torrick showed up at about two p.m. at the house he shared with several other men, but Hardwick returned soon thereafter, learned of Torrick’s visit, and immediately went to the courthouse and paid his fifty-dollar fine.

Three weeks later, on August 3, officer Torrick again showed up at Hardwick’s residence. He asked a guest whether Hardwick was home, and the uncertain visitor pointed Torrick toward Hardwick’s bedroom. There, with the door slightly ajar, Hardwick was engrossed in “mutual oral sex” with another man, a married schoolteacher from North Carolina. Some moments passed before either Hardwick or his friend realized they were being watched, but when they did, Hardwick asked the uniformed policeman the only conceivable question: “What are you doing in my bedroom?” Torrick answered that he had the warrant for Hardwick’s nonappearance on the drinking ticket, but that both Hardwick and his friend were now under arrest for sodomy. Hardwick explained that the warrant had been canceled when he paid the ticket three weeks earlier, but Officer Torrick replied that he had been acting in good faith, and when he spied some marijuana in Hardwick’s room, he added that offense too. Once Hardwick and his distraught companion put on some clothes, Torrick took them out to his squad car, handcuffed them, and took them first to a police substation and then to jail, where officers let everyone know that the duo had been arrested for “cocksucking.” It took almost twelve hours for Hardwick to win release, and a little longer before his frightened friend was also set free.

The jailhouse experience “was a nightmare,” Hardwick later said, and while his friend pled guilty to a lesser charge and paid a fine, so as to minimize the danger that word of his arrest would get back to North Carolina, Hardwick was quite receptive when a local ACLU activist who had heard of the incident contacted him several days later to ask whether he would be willing to help launch a constitutional test case challenging the sodomy statute. Hardwick’s ordeal had been as classic as it was awful, for as one commentator later noted, what had transpired—“police intrusion into Hardwick’s bedroom, followed by charges arising from his sexual conduct—was strikingly similar to the kind of police intrusion” that Justice Douglas’s opinion in Griswold had envisaged as the ultimate violation of constitutional privacy. In late August Hardwick met with a group of Atlanta-area ACLU attorneys, and in mid-September two of them accompanied Hardwick to a municipal court appearance where he pled guilty to the marijuana charge and where the sodomy count was referred to Fulton County Superior Court.

Over the ensuing several months, however, it became clear that local prosecutors preferred not to pursue the sodomy charge, at least in part because Fulton County District Attorney Lewis Slaton believed it highly unlikely that any jury, given the circumstances of Hardwick’s arrest, would return a conviction. Early in 1983 Slaton finally informed Hardwick’s lawyers in writing that his office would not present the case to a grand jury for indictment unless “further evidence” developed. Thus frustrated from being able to pursue the issue as a criminal case, Hardwick’s lawyers five weeks later filed a declaratory judgment suit in federal district court challenging the constitutionality of Georgia’s sodomy statute. The complaint, filed on behalf of both Hardwick and a married couple, “John and Mary Doe,” whom Hardwick knew, alleged that Hardwick “regularly engages in private homosexual acts” and that the Does “have been chilled and deterred from engaging in personal, private sexual activity by the existence of the Georgia sodomy statute and the recent arrest of Plaintiff Hardwick.” The complaint asserted that there was “no rational relationship between any legitimate state purpose and the statute,” which specified anywhere between one and twenty years’ imprisonment for convicted offenders. Georgia Attorney General Michael Bowers was named as the lead defendant, and Hardwick’s lawyers were expressly candid about the case’s purpose: “Sexual conduct in private between consenting adults is protected by a fundamental right of privacy, guaranteed by the 1st, 3rd, 4th, 5th, 9th and 14th Amendments.”86

Hardly two months after the suit was filed, however, District Judge Robert H. Hall dismissed it on the grounds that the Does lacked standing and that Hardwick’s contentions were “foreclosed by the Supreme Court’s affirmance” of Doe v. Commonwealth’s Attorney seven years earlier. “All the constitutional arguments made by Hardwick here were rejected in Doe,” Judge Hall maintained. Hardwick’s attorneys appealed the dismissal to the Eleventh Circuit, but two full years—April 1983 to May 1985—passed before the appellate panel reversed Judge Hall. Frank Johnson’s majority opinion agreed that the Does, unlike Hardwick, faced no reasonable likelihood of prosecution under the statute and hence lacked standing, but with regard to Hardwick he resolutely concluded that the Doe affirmance was in no way dispositive. Johnson held that Constitution protected “certain individual decisions critical to personal autonomy because those decisions are essentially private,” and asserted that the “benefits of marriage can inure to individuals outside the traditional marital relationship. For some, the sexual activity in question here serves the same purpose as the intimacy of marriage.” Johnson reiterated what he termed “the resemblance between Hardwick’s conduct and the intimate association of marriage,” and noted that “the constitutional protection of privacy reaches its height when the state attempts to regulate an activity in the home.” For Hardwick, Johnson emphasized in conclusion, the “activity he hopes to engage in is quintessentially private and lies at the heart of an intimate association beyond the proper reach of state regulation.”

Circuit Judge Phyllis A. Kravitch declined to join Johnson and Tuttle’s ruling, believing that the Doe affirmance was substantively controlling, but gay rights activists welcomed the decision, and one national legal periodical labeled it “unprecedented.” Attorney General Bowers wasted no time whatsoever in petitioning for Supreme Court review, and Hardwick’s lead attorney, Kathleen Wilde, fearing a possible reversal, filed a statement in opposition, contending that “there is no basis for this Court’s review” since the appellate decision was “well-grounded in established constitutional principles” and “does not involve the creation of any new rights.” She stressed that Johnson’s opinion did not “represent a departure from” the Griswold family of precedents and was indeed “the logical result of their application.” Especially Eisenstadt and Carey “make it clear that the right of sexual privacy is the right of the individual to be free from unwarranted government intrusion into matters fundamentally affecting intimate personal decisions,” and she understandably emphasized that Michael Hardwick had been “arrested for conduct which occurred in the privacy of his own bedroom.”87

Michael Bowers’s office filed a reply brief in early October 1985, prominently highlighting an intervening event that had taken place in late August: the Fifth Circuit Court of Appeals, by a en banc vote of 9 to 7, had reversed Judge Buchmeyer’s decision in Baker v. Wade on the grounds that Robert Bork’s opinion in Dronenburg had correctly held that the Supreme Court’s seven-year-old summary affirmance in Doe was a substantively binding precedent that lower federal courts were obliged to follow. Irving Goldberg, one of the seven dissenters, declared with some exasperation that “If ever there was a constitutional right to privacy, Texas has violated it by blatantly intruding into the private sex lives of fully consenting adults,” and when Donald Baker’s attorney submitted a customary petition for rehearing, the circuit court majority issued an almost apologetic supplemental opinion. “We are sensitive and sympathetic to some of the complaints” Baker had voiced, but “it is not the role or authority of this federal court to decide the morality of sexual conduct for the people of the state of Texas.” The nine judges sought to insist that Texas’s same-sex sodomy statute “is directed at certain conduct, not at a class of people,” and they stubbornly declared that “moral issues should be resolved by the people, and the laws pertaining thereto should be written or rescinded by the representatives of the people.”88

When the nine justices of the U.S. Supreme Court first considered Michael Bowers’s request that the Court hear Bowers v. Hardwick, only two of the four necessary votes—Byron White and William Rehnquist—favored granting Bowers’s petition. In mid-October White circulated a short first draft of a dissent, contending that Johnson had erred and that the Doe summary affirmance “was a decision on the merits of the constitutional issues.” Rehnquist immediately concurred, but also joining White’s dissent was William Brennan, who of course held an antithetical substantive view but had long wanted the Court to confront the issue and understandably saw Bowers as an all-but-perfect case. The next day, Friday, October 18, the question of hearing Bowers was formally reconsidered at the justices’ weekly conference, and when Thurgood Marshall, who often followed Brennan’s lead, likewise changed his earlier stance and voted to grant, Bowers v. Hardwick had all four of the votes necessary for high court review.

One person who was extremely worried about the consequences of this highly unusual alliance was Harry Blackmun. Any Supreme Court majority that might vitiate Frank Johnson’s privacy holding would pose a serious doctrinal danger to the underpinnings of Roe and the subsequent abortion decisions, and several days later Blackmun raised his concern directly with Brennan. One of Brennan’s clerks remained enthusiastically convinced that Bowers was nothing short of ideal, but on October 23 Brennan sent a memo to his colleagues saying that he had given the case a “second look” and had “decided to change my vote. I vote to deny.” That shift reduced Bowers to only three votes, but within twenty-four hours, Warren Burger circulated a follow-up to Brennan’s note: “I, too, have taken a second look” and he now would grant, restoring the tally to four. Thurgood Marshall’s law clerks, fully aware of Blackmun’s anxiety, suggested that he like Brennan should seriously rethink his vote, but Marshall, who might have found it embarrassing to once again follow Brennan in quite so visible a fashion, was also very strongly committed to the home-privacy principle of his 1969 opinion in Stanley. His crucial vote did not change, and on November 4 the Court publicly announced that it was accepting the appeal of Bowers v. Hardwick.89

The very next morning, the justices heard oral argument in both Thornburgh v. ACOG, Pennsylvania’s abortion case, and Diamond v. Charles, an appeal of a lower court invalidation of Illinois’ antiabortion regulations that was being pursued by attorney Dennis Horan on behalf of a right to life physician but not by the state of Illinois itself. Clinic bombings and attacks in such cities as Toledo and Philadelphia had continued to attract far more public attention than did such appellate litigation, and that same day—the first Tuesday in November—voters in three New England towns, including Bristol, Connecticut, which was 70 percent Catholic—were going to the polls to reject anti-Roe referenda that abortion opponents had succeeded in placing on local ballots. At oral argument, the nine justices were frankly skeptical about the jurisdictional status of Horan’s third-party plea, but Thornburgh, like Akron and Ashcroft three years earlier, was a serious and complex case. At the justices’ private conference three days later there was virtual unanimity that Diamond should indeed be dismissed on procedural grounds, and when the tentative tally was taken on Thornburgh, it became more definite than ever before that with Warren Burger’s unmistakable shift toward the stance taken by Justices White, Rehnquist, and O’Connor, Roe v. Wade’s actual margin of support in the U.S. Supreme Court had indeed slipped to only 5 to 4.⁹⁰

The winter holiday season of 1985–1986 was marked by a significant upsurge in antiabortion violence, as letter bombs mailed to four Oregon clinics luckily malfunctioned and as actual explosions rocked facilities in New York City, Cincinnati, and Toledo. The Diocese of Providence officially excommunicated the Roman Catholic executive director of Rhode Island Planned Parenthood on the grounds that she was an “accomplice” to abortion, and while major public opinion polls found virtually no movement in the complex mix of American attitudes on the topic, more than eighty thousand participants turned out for an early March pro-choice demonstration in the nation’s capital. Later that month, however, antiabortion violence resurfaced in a particularly blatant form when former Ku Klux Klansman John Burt, the commander of right to life forces in western Florida, led five followers in a physical assault on a Pensacola clinic that left two staff members injured and all six invaders under arrest.91

On the last day of March, the U.S. Supreme Court heard oral argument in Bowers v. Hardwick. The principal briefs, plus fourteen amicus submissions, had all been filed several months earlier; in the interim, the Fourth Circuit Court of Appeals, in an opinion written by Lewis Powell’s closest protégé, J. Harvie Wilkinson III, had vacated Judge Merhige’s ruling against Virginia’s sex statutes on the grounds that the heterosexual plaintiffs actually faced no plausible threat of prosecution. Hardwick’s brief, authored by his new lead counsel, Laurence Tribe, and two associates, sought to highlight how the case involved “values of intimate association, and of the sanctity of the home,” and made virtually no references to homosexuality. The brief underscored how neither Eisenstadt, Roe, nor Carey had been confined by concepts of marriage or family, and while it quoted several times from John Harlan’s dissent in Poe, it placed far more emphasis upon Stanley’s special concern for the home. The sexual relations involved in Bowers ought to be viewed “solely as a facet of associational intimacy” that already had received constitutional recognition, for “this Court’s decisions upholding access to contraceptives involved not so much the right to buy and use a particular pharmaceutical product, as the right to engage in sexual intimacy as such.”

Within the Court, most clerks agreed wholeheartedly with Tribe’s analysis. One of Marshall’s young assistants, Dan Richman, recapitulated the arguments shortly in advance of the hearing: “To repeat the point, which I’m sure many members of the Court will forget or ignore: THIS IS NOT A CASE ABOUT ONLY HOMOSEXUALS. ALL SORTS OF PEOPLE DO THIS KIND OF THING.” Hardwick’s suit, he advised the seventy-seven-year-old Marshall, involved sex acts which “are incredibly popular among a substantial chunk of the population,” and he pointed out that pursuant to Griswold and Roe, “this Court (though it would never phrase it this way) has essentially established a right to engage in recreational sex.”

Among the clerks, however, expectations took a worrisome turn two days before the oral argument when word spread that Lewis Powell, apparently unaware that he himself had already employed numerous gay assistants during his fifteen years on the Court, told one astounded and discomforted clerk that he had never met a homosexual. On Monday morning, March 31, Georgia assistant attorney general Michael Hobbs faced off against Laurence Tribe, with Hobbs contending in his argument that no nonmarital sex of any sort, whether heterosexual or homosexual, merited any special constitutional protection. Once Tribe began his presentation, Lewis Powell immediately jumped in to ask what limiting principle Tribe would apply to the right to privacy argument. “It includes all physical, sexual intimacies of a kind that are not demonstrably physically harmful, that are consensual and noncommercial, in the privacy of the home,” Tribe replied, stressing that the essence of his case was “autonomous personal control over intimacy.”92

When the justices met privately on April 2 to decide Bowers, Warren Burger began the discussion by declaring that the only issue in the case was homosexuality, since the married plaintiffs lacked standing. Under the common law, Burger stressed, sodomy had been a crime for centuries, and privacy analysis could not be controlling, for without any limiting principle even incest would be protected. William Brennan, however, cited both Griswold and Stanley in contending that privacy was paramount and that noncommercial conduct in the home by consenting adults was constitutionally protected. Bowers was not just about homosexuals, Brennan told his colleagues, but Byron White said simply that he agreed with Burger, and Thurgood Marshall mentioned Stanley in announcing that he agreed with Brennan. Harry Blackmun commended Frank Johnson’s “great” job and a “careful and crafts-manlike” opinion and emphasized how the case did not involve coercion, prostitution, or public activity outside the home. He warned that the Georgia law could spill over into marriage, and cited Loving v. Virginia. Lewis Powell said he had mixed emotions. He had “never met a homosexual,” but Hardwick’s conduct ought to be decriminalized, especially in the context of the home and particularly given the statute’s history of nonenforcement. Robinson v. California, a 1962 decision in which the Court on Eighth Amendment “cruel and unusual punishment” grounds had thrown out a criminal conviction based simply upon a man’s status as a drug addict might be relevant, Powell suggested, if sexual preference indeed was not simply a behavioral choice. Hardwick “gets his satisfaction in [the] home” and Georgia “can’t imprison him for this affliction.” William Rehnquist stated that he sided with Burger and White, and that Stanley was “unfortunate,” since the “criminal law has moral underpinnings.” John Stevens said that morality was not enough, and that while he disliked homosexuals—“I hate homos,” one colleague quoted Stevens as saying—“we have to live with it,” for it was a basic question of liberty. Sandra O’Connor noted that there was no absolute constitutional right to privacy, and that the state did have broad authority to enact morals legislation. Sodomy was clearly prohibited at the time the Constitution was adopted, even if Georgia had explicitly declined to prosecute Michael Hardwick.

The conference ended with five apparent votes for affirming Frank Johnson’s ruling: Brennan, Marshall, Blackmun, Powell, and Stevens. At Harry Blackmun’s request, Bill Brennan assigned the majority opinion to Blackmun, but over the ensuing several days a discomfited Lewis Powell continued to contemplate what the best aftermath would be. Hardwick’s conduct should not be punishable, but at the same time Johnson’s depiction of it as analogous to marriage went much too far. Powell knew what he thought; he simply was uncertain as to whether his stance meant that he should favor affirmance or reversal. Finally, on April 8, he circulated a memorandum to all eight of his colleagues:

At Conference last week, I expressed the view that in some cases it would violate the Eighth Amendment to imprison a person for a private act of homosexual sodomy. I continue to think that in such cases imprisonment would constitute cruel and unusual punishment. I relied primarily on Robinson v. California.

At Conference, given my view as to the Eighth Amendment, my vote was to affirm but on this ground rather than the view of four other Justices that there was a violation of a fundamental substantive constitutional right—as [the Eleventh Circuit] held. I did not agree that there is a substantive due process right to engage in conduct that for centuries has been recognized as deviant, and not in the best interest of preserving humanity. I may say generally, that I also hesitate to create another substantive due process right.

I write this memorandum today because upon further study as to exactly what is before us, I conclude that my ‘bottom line’ should be to reverse rather than affirm. The only question presented by the parties is the substantive due process issue, and—as several of you noted at Conference—my Eighth Amendment view was not addressed by the court below or by the parties.

In sum, my more carefully considered view is that I will vote to reverse but will write separately to explain my views of this case generally. I will not know, until I see the writing, whether I can join an opinion finding no substantive due process right or simply join the judgment.

Powell’s memo was greeted with understandable dismay in the four chambers whose justices had suddenly been recast as Bowers’s dissenters. Before the afternoon was out, John Stevens dictated a brief “Dear Lewis” letter that when circulated to all eight justices early the next morning immediately became a top contender for the most droll missive in Supreme Court history:

Your letter, which expresses some uncertainty as to whether your final vote would be one to reverse or to affirm brings to mind the disposition of the Court in Coleman v. Miller, 307 U.S. 433, 446–447, where the Court, with all nine justices participating, disposed of the question whether the Lieutenant Governor of Kansas was part of the state legislature, by stating that the Court was “equally divided” on the issue.

Maybe we should follow a similar course in this case.

Respectfully,

The gentlemanly Lewis Powell did not reply to Stevens’s note in writing, but the very next morning, Warren Burger circulated a memo formally reassigning the majority opinion in Bowers v. Hardwick to Byron White. Within less than two weeks, after putting aside his clerk’s draft in order to prepare an opinion that was very much his own, White circulated an initial print of a statement for the nascent Bowers majority. Only Bill Rehnquist immediately joined, and while Harry Blackmun advised that he would be writing a dissent, Powell told White after seeing the draft that “I will join the judgment but will probably write separately.”93

Eight full weeks passed before any further developments occurred in Bowers. In the interim, the justices in late April dismissed Dennis Horan’s appeal of Diamond v. Charles and then, on June 11, publicly handed down their five-to-four ruling against Pennsylvania’s antiabortion regulations in Thornburgh v. ACOG. Blackmun’s majority opinion resolutely declared that “again today, we reaffirm the general principles laid down in Roe and in Akron,” and explained that Pennsylvania’s restrictions “intrude upon the physician’s exercise of proper professional judgment” in addition to infringing upon the rights of pregnant women. “The Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government,” Blackmun reiterated. “Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision.… whether to end her pregnancy. A woman’s right to make that choice freely is fundamental.”

John Stevens contributed a sprightly concurrence, acknowledging that “the State’s interest in the protection of an embryo … increases progressively and dramatically as the organism’s capacity to feel pain, to experience pleasure, to survive, and to react to its surroundings increases day by day,” but among Thornburgh’s dissenters, Warren Burger’s opinion was perhaps the case’s most remarkable statement. “Every member of the Roe Court,” Burger asserted, “rejected the idea of abortion on demand. The Court’s opinion today, however, plainly undermines that important principle.” If both Thornburgh and the 1976 decision in Danforth, from which Burger had also dissented, “really mean what they seem to say, I agree that we should reexamine Roe.” Byron White of course had believed for over thirteen years that Roe demanded more than just reconsideration, but his Thornburgh dissent, which William Rehnquist also joined, was as tough-spoken and fetally oriented as any prior statement on abortion by any justice. “I can certainly agree with the proposition—which I deem indisputable—that a woman’s ability to choose an abortion is a species of ‘liberty’ that is subject to the general protections of the Due Process Clause,” White seemingly conceded. “I cannot agree, however, that this liberty is so ‘fundamental’ that restrictions upon it call into play anything more than the most minimal judicial scrutiny.” The presence of a fetus meant that the avowal of a right to abortion was “different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.” The state’s interest in protecting a fetus was just as “compelling” in advance of viability as afterwards, and only “the warped point of view of the majority” kept them from acknowledging that. Sandra O’Connor’s dissent was far less harsh than White’s, but she nonetheless contended that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”94

Six days after the Thornburgh decision was handed down, Warren Burger made far more momentous news when he announced his retirement as Chief Justice at the upcoming completion of the Court’s 1985–1986 term. President Ronald Reagan, whom Burger had notified in advance, simultaneously announced his nomination of William Rehnquist as the next Chief Justice and D.C. Circuit Court Judge Antonin Scalia—who had joined Robert Bork’s privacy opinion in Dronenburg—to assume Rehnquist’s seat. Considerable opposition to Rehnquist’s promotion quickly arose, whereas Scalia’s selection drew little critical comment, but inside the Court itself, as the justices moved into the final ten days of the term, one principal unsettled question remained the final disposition of Bowers v. Hardwick. Two days after Burger’s announcement, Sandra O’Connor had joined Rehnquist in endorsing Byron White’s draft opinion, while Lewis Powell had circulated a first print of his separate concurrence, but only on June 24, after both Harry Blackmun and John Stevens had distributed dissents, did Burger himself formally become the fourth vote in support of White. The following day, Powell for the first time appended to a third recirculation of his concurrence that “I join the opinion of the Court,” thus giving White’s statement official status as a majority opinion. Six days later, on June 30, the Supreme Court’s 5 to 4 decision in Bowers v. Hardwick was publicly announced.95

White’s opinion for the Court asserted that Bowers v. Hardwick involved “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” From Pierce, Meyer, Prince, and Skinner through Griswold, Loving, Eisenstadt, and Roe, White proclaimed, “none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in sodomy … No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated” and “any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.” Against the background of the Supreme Court’s due process precedents protecting familial privacy, White maintained, “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” Warren Burger’s concurrence reiterated that “there is no such thing as a fundamental right to commit homosexual sodomy” and observed that “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

Lewis Powell’s supplemental concurrence agreed that Hardwick’s case involved no substantive fundamental right, but Powell added that “This is not to suggest, however, that respondent may not be protected by the Eighth Amendment,” especially since the Georgia law authorized imprisonment for as much as twenty years. “In my view, a prison sentence for such conduct—certainly a sentence of long duration—would create a serious Eighth Amendment issue.” Powell noted that “In this case, however, respondent has not been tried, much less convicted and sentenced. Moreover, respondent has not raised the Eighth Amendment issue below. For these reasons this constitutional argument is not before us.” In a footnote, Powell observed that even Professor Tribe had conceded that prior to Hardwick’s experience “there had been no reported decision involving prosecution for private homosexual sodomy under this statute for several decades” and that especially in light of that fact, “for the reasons stated by the Court, I cannot say that conduct condemned for hundreds of years has now become a fundamental right.”

Harry Blackmun’s dissent, in which Justices Brennan, Marshall, and Stevens all joined, was a forceful rejoinder to Byron White. “This case is no more about ‘a fundamental right to engage in homosexual sodomy’ … than Stanley … was about a fundamental right to watch obscene movies, or Katz,” a 1967 decision extending the Fourth Amendment’s protection against unreasonable search and seizure to electronic surveillance, “was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely ‘the right to be let alone,’” as Justice Brandeis had said in Olmstead in 1928. Reiterating how “the majority has distorted the question this case presents,” Blackmun emphasized that the Georgia sodomy statute covered heterosexuals as well as homosexuals and that Hardwick’s claim that the law represented an “unconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation.” Additionally, “Georgia’s exclusive stress before this Court on its interest in prosecuting homosexual activity despite the gender-neutral terms of the statute may raise serious questions of discriminatory enforcement.” Blackmun affirmed that “the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy,” and he decried the majority’s “failure to comprehend the magnitude of the liberty interests at stake in this case.” “Depriving individuals of the right to choose for themselves how to conduct their intimate relationships,” Blackmun asserted, “poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do.”

John Stevens also filed a dissent, joined by both William Brennan and Thurgood Marshall, that cited the Court’s 1967 voiding of Virginia’s ban on interracial marriage in Loving as precedent for how “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” The liberty right recognized in Griswold, Eisenstadt, and Carey, Stevens observed, “surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral.” Even Georgia had conceded that it could not constitutionally apply its sodomy statute against married couples, Stevens noted, and under Eisenstadt’s equal protection extension of Griswold to single individuals, any sodomy prosecution of unmarried heterosexuals would be highly suspect. Hence the majority’s declaration that Georgia could enforce the law against homosexuals, while the statute itself “presumably reflects the belief that all sodomy is immoral and unacceptable,” inescapably posed a serious equal protection problem.96

The Court’s announcement of Bowers v. Hardwick was greeted with widespread expressions of dismay and sharp attacks upon the tone and content of Byron White’s opinion. Gay rights attorney Tom Stoddard termed the decision “a major disaster,” and ACLU litigator Nan Hunter called it “as much of a setback as we can experience without an overturning of Roe.” The New York Times branded it “a gratuitous and petty ruling, an offense to American society’s maturing standards of individual dignity,” and constitutional scholar Paul Brest, writing in the Los Angeles Times, said that White’s opinion was “so lacking in legal craft that it makes one wonder what was going on.” Yale law professor Paul Gewirtz castigated White for a ruling that was “superficial, peremptory and insensitive,” and warned that “the Court treats homosexuals’ claims in such a dismissive way that it conveys a sense that similar treatment by legislatures would be appropriate.” A Syracuse law professor opined that White “was simply mirroring and sanctioning societal attitudes about the unacceptability of homosexual conduct,” and attorney Stoddard, in a subsequent commentary, contended that the Court’s ruling “rests upon nothing more substantial than the collective distaste of the five justices in the majority for the conduct under scrutiny.” Professor Brest, the New York Times, and even The New Republic all praised Blackmun’s dissent as “eloquent,” and Gallup Poll results showed that of the 73 percent of respondents who said they had heard of the decision, 47 percent of them expressed disapproval while only 41 percent said that they agreed.

Newsweek magazine featured those Gallup numbers in a story which declared that while the right to privacy was “Now regarded as one of our fundamental birthrights,” the evolution of that right had come to “an abrupt halt” with Bowers. Several legal observers elucidated how Bowers and Roe were “inconsistent and irreconcilable,” despite Lewis Powell’s fifth-vote endorsement of both, and former White House counsel Charles Colson was only one of many abortion opponents who pointed out that “To apply the logic of the sodomy case to Roe v. Wade is to reverse Roe v. Wade.” Indeed, as one gay rights litigator trenchantly noted, Bowers “is the decision that Justice White would like to write about abortion rights, but for which he does not have the fifth vote.”97

A very few writers sided with White. One law professor who had filed his own amicus brief in Bowers, warning against the dangers of AIDS, complained that Blackmun’s dissent “strikingly invoked the liturgies of autonomous hedonism,” and an idiosyncratic former Blackmun clerk commended the “extraordinarily forceful reasoning” of White’s opinion while celebrating how Bowers “rejects the philosophical underpinnings of Roe” and represented “a distinct philosophical break with the modern line of right to privacy decisions that began with Griswold.” Many conservative constitutional scholars, however, were loathe to embrace the Bowers majority. Roe critic and Reagan administration Solicitor General Charles Fried subsequently disparaged “White’s stunningly harsh and dismissive opinion” and characterized Hardwick’s conduct as first and foremost “an act of private association and communication. The fact that sexuality is implicated seems an anatomical irrelevance.” Legal pundit Bruce Fein, conservative even by Reagan administration standards, admitted that “the political case for judicial rescue of homosexuals from the legislative process was greater than that for the Griswold intervention on behalf of married couples,” and warned that in light of the doctrinal contradictions between Bowers and previous holdings, the American public would “correctly” conclude that the Court’s privacy decisions were based on simply “the varied personal policy predilections of the Justices” themselves.⁹⁸

Within two weeks of the Bowers announcement, a front-page story in the Washington Post revealed how the end result had differed from the initial conference tally: “Powell Changed Vote in Sodomy Case.” In the interim, the Supreme Court had quietly rejected an appeal of Baker v. Wade, and soon thereafter the Missouri Supreme Court invoked Bowers while reversing a lower court’s invalidation of that state’s sodomy statute. The Missouri high court also cited both Robert Bork’s opinion in Dronenburg and “the general promiscuity characteristic of the homosexual life style” as additional support for its holding. Laurence Tribe prepared the customary petition requesting Supreme Court reconsideration of Bowers with tacit assistance from the light that the Post’s disclosure shed on Lewis Powell’s concurrence, and Tribe’s petition thus emphasized Eighth Amendment themes. Hardwick had indeed been jailed pursuant to his arrest, Tribe noted, but even more so, “it is the very criminalization of an involuntary condition, not the terms of any specific sentence imposed, that violates the Constitution.” Tribe pointed out that the actual record “contains nothing as to the gender of Hardwick’s partner,” and he further stressed that “the effect of the decision in this case is to encourage the eventual overruling of decades of privacy decisions from Meyer … and Pierce … through Griswold … [and] Roe.” The question before the Court, he reminded the justices, “is not what Respondent Michael Hardwick was doing in the privacy of his own bedroom, but what the State of Georgia was doing there.”

In mid-September, however, the high court rejected the rehearing petition without comment. Four weeks later, in a separate action that many observers took as implicit confirmation of Bowers’s homophobic message, the justices declined to hear an appeal of an Oklahoma decision that had cited constitutional privacy grounds in voiding sodomy prosecutions of nonmarital but consensual heterosexual couplings. In Georgia, though, the fifteen months after Bowers witnessed two state supreme court decisions affirming sodomy convictions that involved very significant jail terms. In one, James A. Lambeth’s sentence of five years for what a trial jury apparently had concluded was consensual, heterosexual anal sex was upheld, while in the other, James H. Gordon, Jr., received ten years for a half-dozen consensual encounters with an underage, sixteen-year-old male upon whom Gordon had performed fellatio and who in turn had anally sodomized Gordon. Three years later, Lewis Powell publicly acknowledged that while Bowers was a “close call” and “not very important,” he nonetheless had concluded that “I think I probably made a mistake” in voting to uphold the law. Bowers “was not a major case, and one of the reasons I voted the way I did was the case was a frivolous case” which had been brought “just to see what the Court would do,” Powell recalled. “When I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments.”99

Harry Blackmun of course agreed. Asked some months later whether he believed that his dissent would ultimately prevail, Blackmun agreed that “it will in the long run,” for eventually Bowers “has to be overturned.” But Blackmun’s more pressing concern in the late summer and early fall of 1986 was the future of Roe v. Wade, for only one vote separated the Thornburgh majority from the Thornburgh dissenters. The Senate’s unanimous mid-September confirmation of Antonin Scalia, following a more divisive vote that had elevated William Rehnquist to Chief Justice, had not altered the Court’s numerical balance, for Scalia presumably would take Warren Burger’s place among the Thornburgh minority, but the departure of any member of Thornburgh’s majority would jeopardize Roe’s entire thirteen year heritage. Roe was “a landmark decision” in the “emancipation of women,” Blackmun acknowledged to one questioner, but “It may well be overruled,” depending on shifts in the Court’s membership. Most abortion news continued to focus on right to life violence against clinics—bombings in Kansas and New York, arson fires in Missouri and Michigan—but in the November elections antiabortion referendum proposals in Arkansas, Massachusetts, Oregon, and Rhode Island all went down to defeat. In midfall the Supreme Court announced that it would hear an Illinois appeal of a lower court decision that had voided several state antiabortion regulations, but in March 1987, just two days before the scheduled oral argument, the justices postponed the case until the fall and asked the parties for supplemental briefs.100

On Friday, June 26, the final day of the Court’s 1986–1987 term, seventy-nine-year-old Lewis F. Powell announced his retirement. Five days later, after White House political advisors had carefully surveyed the votes necessary for Senate confirmation, President Reagan announced his nomination of D.C. Circuit Court Judge Robert H. Bork as Powell’s successor. News accounts highlighted Bork’s established track record as an outspoken critic of Roe, and pro-choice groups such as NARAL wasted no time in announcing that they would mount a full-scale campaign against the nomination. Senate Judiciary Committee hearings on Bork would not begin until mid-September, and while his opponents were leery about making Roe itself a focal point of their campaign, they also realized that Bork’s academic attacks on Griswold would allow them to portray him as an enemy of the right to privacy. Early in August, an ad placed in the Washington Post by People for the American Way asserted that Bork “has argued many times that the Constitution does not specifically recognize the right to privacy. In one case, he said the state could prevent married couples from using contraceptives at home.” Some readers may have thought that this referred to a decision Bork had rendered as a judge, but as the Senate hearings drew near, his opponents’ invocation of privacy themes intensified. “According to Bork,” a NARAL ad proclaimed, “A state can declare the use of birth control illegal and invade your privacy to enforce the law.” An anti-Bork television commercial featuring the actor Gregory Peck told viewers that the nominee “doesn’t believe the Constitution protects your right to privacy,” and a New York Times ad placed by Planned Parenthood of New York City said that Bork had termed Griswold “utterly specious” and warned that if he was confirmed, “you’ll need more than a prescription to get birth control.”

Democratic consultant Ann Lewis later underscored how anti-Bork activists had recognized that the privacy emphasis was “the strongest way to make the case” against the nominee. As liberal strategist Nikki Heidepriem subsequently explained, in the effort to portray Bork as “a rigid ideologue … with a stifling interpretation of a living document,” the “key surrogate for that notion was privacy,” for “privacy as an overarching concept gave us a chance to talk about control, as in choice, and integrity of the home.” Indeed, the very morning that the Senate Judiciary Committee hearings on the nomination finally got underway, a People for the American Way ad in the New York Times reminded readers that “to this day” Bork still believed that “the Supreme Court was wrong when it stopped one state from making the use of contraceptives by married couples a punishable crime.”

While Bork’s foes had undoubtedly capitalized on Griswold in seeking to arouse opposition to the nomination, Bork himself in his first day of testimony bluntly restated his attacks on both Griswold and Roe. “If Griswold v. Connecticut established or adopted a privacy right on reasoning which was utterly inadequate, and failed to define that right so we know what it applies to,” Bork told the Senators, then “Roe v. Wade contains almost no legal reasoning. We are not told why it is a private act, and if it is—there are lots of private acts that are not protected—why this one is protected. We are simply not told that. We get a review of the history of abortion and we get a review of the opinions of various groups like the American Medical Association, and then we get rules. That’s what I object to about the case. It does not have legal reasoning in it that roots the right to abortion in constitutional materials.” Committee chairman Joseph R. Biden, Jr., who had pointed out to his own staffers that “if you don’t have Griswold, you can’t get to Roe”—joined Massachusetts Democrat Edward M. Kennedy and Utah Republican Orrin Hatch in extended colloquies with Bork about Griswold’s privacy holding, and the following day Senators Alan Simpson, Arlen Specter, Dennis DeConcini, Charles Grassley, and Howell Heflin all queried Bork about the case. Bork termed Griswold “a radical departure” from the Court’s previous jurisprudence while trying to stress that he neither endorsed the old Connecticut statute nor opposed the principle of marital privacy. Bork nonetheless insisted that “It remains a live controversy” as to whether Griswold was correctly decided, and political participants as well as journalists increasingly realized that Bork’s deepening image as an unwavering opponent of constitutional privacy was doing his nomination greater political harm than any other single factor. Once Bork’s own testimony was complete, more and more signs appeared to indicate that his chances for confirmation were fast slipping away. On Monday, September 21, the sixth day of actual hearings, impetuous Wyoming Republican Alan Simpson spoke about both Griswold and the nomination in the past tense while complaining to no one in particular that “you cannot believe how much time we have spent on that nutty case and how much mileage the opponents of Bork got out of it. This was the key.”

One week later, with judiciary committee testimony still continuing, a Louis Harris poll found that opponents of the Bork nomination now outnumbered supporters by 57 to 29 percent. The heaviest anti-Bork sentiment, Harris reported, centered on Griswold. One Harris query had used an invented quotation to ask respondents whether or not they were worried about Bork’s opposition to a constitutional right to privacy: “Judge Bork has said, ‘when a state passes a law prohibiting a married couple from using birth control devices in the privacy of their own home, there is nothing in the Constitution that says the Supreme Court should protect such married people’s right to privacy.’ That kind of statement worries me.” An overwhelming 68 percent of respondents said that yes, they were worried, while only 27 percent were not, and two days later, when the Harris survey was officially entered into the judiciary committee’s hearing record, Pennsylvania Republican Arlen Specter remarked that “Griswold is the most discussed case in America today.”

The day after the hearings finally concluded, with Bork’s prospects for Senate confirmation now viewed as next to hopeless, the nominee sent judiciary committee chairman Biden a fifteen-page letter, more than half of which was devoted to defending his criticisms of Griswold-style privacy reaching all the way back to 1971. Citing Roe and Bowers, Bork observed that “The difference between these two decisions illustrates my point that it is difficult, if not impossible, to apply the undefined right of privacy in a principled or consistent manner. It is difficult to understand why abortion is a constitutionally protected liberty and homosexual sodomy is not.” Bork of course was not suggesting that Bowers had been wrongly decided, for while he would later say that he was “dubious about making homosexual conduct criminal,” he nonetheless believed that Blackmun’s dissent was “a constitutional debacle” as well as “the natural outcome of Griswold.”101

Five days later the judiciary committee voted 9 to 5 against Bork’s confirmation, and as additional Senators announced their opposition to the nomination, Bork himself resolved to push forward to a full floor vote despite the sure knowledge that he would lose. New York Democrat Daniel Patrick Moynihan, revealing his decision to vote against Bork, explained that “it is his restricted vision of privacy which troubles me most. I cannot vote for a jurist who simply cannot find in the Constitution a general right of privacy,” for such a right “is a fundamental protection for the individual and the family against unwarranted state intrusion. Its importance is such that I cannot support anyone for a Supreme Court appointment who would not recognize it.”

On October 23 the full Senate voted 58 to 42 to reject the nomination, and judiciary committee chief counsel Mark Gitenstein, looking back on the preceding weeks, would conclude that “if the Bork struggle was over any one case, it was Griswold v. Connecticut.” Other constitutional commentators came to the same judgment, with one opining that the “Bork nomination hearings have made clear that ‘privacy’ … enjoys broad popular support as a constitutional value” and another deciding that “Bork was deprived of a seat on the Supreme Court largely because of his refusal to acknowledge the ‘unenumerated’ right to privacy as being part of the set of constitutional rights legitimately enjoyed by Americans.” Bork’s opponents, one analyst observed, had convinced most Senators that they “could use allegiance to Griswold as a useful litmus test for membership in the ‘mainstream’ of constitutional thought,” and the same writer, quoting from a Supreme Court decision of four decades earlier, volunteered that “If the Bork hearings accomplished anything beyond the rejection of the Bork nomination itself, it was the enshrinement of Griswold v. Connecticut as ‘a fixed star in our constitutional firmament.’” Bork’s supporters unhappily concurred, with one warning that “any future nominee who has ever questioned the constitutional integrity or the political propriety of Griswold will suffer Bork’s fate.” Griswold, he indignantly agreed, had indeed “become the Senate’s litmus test for federal judges.”102

In subsequent years, after he resigned his circuit court judgeship, Robert Bork would further intensify his attacks upon both Roe and Griswold, decrying “the spurious right of privacy that Griswold created” and denouncing Roe as “the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century.” Regarding Roe, Bork would also allege that “in the entire opinion there is not one line of explanation, not one sentence that qualifies as legal argument,” and eventually he would angrily insist that “it will probably never be too late to overrule the right of privacy cases, including Roe” and apparently even Griswold.¹⁰³

In the immediate wake of Bork’s overwhelming Senate defeat, the Reagan administration moved quickly to select another nominee for Lewis Powell’s now-vacant seat. Its first choice was one of Bork’s younger colleagues on the D.C. Circuit Court, Douglas Ginsburg, but just nine days after being nominated, Ginsburg was forced to withdraw from consideration when confronted with published reports that he repeatedly smoked marijuana while a professor at Harvard Law School in the late 1970s. Four days after Ginsburg’s withdrawal, President Reagan nominated fifty-one-year-old Ninth Circuit Court of Appeals judge Anthony M. Kennedy, a moderately conservative Roman Catholic from Sacramento, as his third choice to succeed Lewis Powell. With no signs of controversy and little overt opposition, three short days of Senate Judiciary Committee hearings on Kennedy’s nomination got underway in mid-December.

The very same morning that Judge Kennedy began his testimony before the Senate committee, the eight sitting members of the Supreme Court announced that they had deadlocked 4 to 4 over Illinois’s abortion case appeal in which the high court had heard oral argument five weeks earlier. No longer was there any doubt that Lewis Powell’s eventual successor would become the decisive vote on the legacy of Roe v. Wade, and at the Senate hearing, Anthony Kennedy implicitly but clearly emphasized that his view of constitutional rights was decidedly broader than Robert Bork’s. “I think that the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage,” Kennedy told the judiciary committee. Chairman Biden followed up immediately: “Let me put it to you very bluntly. Do you think Griswold was reasoned properly?” Kennedy parried, saying that he would prefer not to address specific reasoning or results, but he did volunteer that “if you were going to propose a statute or a hypothetical that infringed upon the core values of privacy that the Constitution protects, you would be hard put to find a stronger case than Griswold.” Kennedy unhesitatingly answered “yes” when Biden asked “Is there a marital right to privacy protected by the Constitution?,” and the nominee added that “the value of privacy is a very important part” of the “substantive component” of the due process clause. “It is not clear to me that substituting the word ‘privacy’ is much of an advance over interpreting the word ‘liberty,’ which is already in the Constitution,” he explained to the committee.104

In early February 1988, the U.S. Senate unanimously confirmed Anthony Kennedy as the ninth member of the Supreme Court, and with no abortion law cases scheduled for argument, Justice Kennedy’s first six months of service passed without any opportunity for illumination of what his liberty views might mean for the future of Roe. Most abortion news focused on the disruptive efforts of Operation Rescue, a relatively new antiabortion group headed by former used-car salesman Randall Terry, to block women from entering abortion clinics, first in New York and then, in midsummer, during the Democratic National Convention in Atlanta. While some observers viewed Terry’s emergence as evidence that pro-choice forces were on the defensive, other journalists interpreted right to lifers’ adoption of such “direct action” tactics as indicative of how they so far had been largely unsuccessful in trying to combat abortion through normal legislative and judicial processes. In mid-September, just a few weeks before the high court began its 1988–1989 term, Justice Blackmun drew nationwide news coverage when he rhetorically asked a University of Arkansas audience “Will Roe v. Wade go down the drain?” and answered that “there’s a very distinct possibility that it will, this term. You can count the votes.” Clearly referring to Kennedy’s possible stance towards Roe, Blackmun added that “One never knows what a new justice’s attitude toward stare decisis is. It’s now fifteen years old.”105

In the November elections, antiabortion forces were heartened both by Republican presidential candidate George Bush’s resounding victory over Democrat Michael Dukakis and by the defeat of referenda in Colorado and Michigan that would have restored state funding for indigent women’s abortions. Then, just two days after the election, outgoing Solicitor General Charles Fried asked the Supreme Court to hear a Missouri appeal of a circuit court decision that had voided several state antiabortion restrictions. Fried’s petition also noted how the case, Webster v. Reproductive Health Services, could provide an opportunity for the Court to reconsider Roe v. Wade, and at a private conference on January 6, 1989, at least four justices—White, Rehnquist, Stevens, and O’Connor—voted in favor of accepting the appeal. Three days later that action was publicly announced, and both attentive journalists and interested litigators began to lay odds on what the newly constituted Court—with Anthony Kennedy rather than Lewis Powell as the apparent swing vote—would do with—or to—the legacy of Roe v. Wade.¹⁰⁶

In late February both Missouri Attorney General William L. Webster and Fried’s interim successor as solicitor general filed briefs defending the state’s regulations and taking aim at Roe. The Reagan administration’s submission forthrightly contended that “Roe v. Wade unduly restricts the proper sphere of legislative authority in this area and should be overruled.” It asserted that the abortion “controversy has, in substantial measure, been a product of the decision itself” and the “unworkable framework” Roe had created. Missouri’s brief declared that “the trimester approach established in Roe v. Wade is inherently flawed because the point of viability is arbitrary and the State has a compelling interest in protecting life through all stages of pregnancy.” Webster further maintained that “The textual, doctrinal, and historical basis for Roe v. Wade is flawed and is a source of such instability in the law that the Court should reconsider the decision, and on reconsideration abandon it and adopt the rational basis test for reviewing abortion regulations in accordance with Bowers,” where White had applied that most deferential level of judicial scrutiny. “Criticism regarding the legitimacy of the right declared to be fundamental in Roe v. Wade continues unabated,” Webster stressed, and the “Court’s reasoning in Bowers constitutes a forceful basis for rejecting the philosophical underpinnings of Roe.”

The brief for Reproductive Health Services, St. Louis’s oldest and best-established abortion clinic, reminded the Court that “Roe was a logical and necessary outgrowth of the long line of cases preceding it which recognized a fundamental right to privacy in matters of child-bearing and family life.” Ten days after it was filed, a huge pro-choice march drew more than 300,000 participants to the nation’s capital, and while public opinion polls continued to show that upwards of 60 percent of Americans favored leaving an abortion decision to a woman and her doctor, only a slim majority said they supported Roe and just a narrow plurality voiced opposition to laws that would make abortions harder to obtain. A veritable deluge of amicus briefs—seventy-eight in all, twenty more than the previous Supreme Court record of fifty-eight eleven years earlier in the Bakke affirmative action case—had been filed in Webster, including one heavily publicized defense of Roe submitted on behalf of almost three hundred historians. A distinct majority of the amicus filings, however, sided with Missouri, and just six days before oral arguments, Attorney General Webster tendered a final reply brief in which he again sought to underscore how “the fact that abortion involves the purposeful termination of a potential human life takes it altogether outside the bounds of the right to privacy.”107

The highlight of the April 26 hearing was the ten-minute presentation of former Solicitor General Charles Fried on behalf of the Bush Administration. As in the government’s brief, Fried immediately told the justices that the United States was asking that Roe be reconsidered and overruled because “abortion is different” from the intimate or familial decisions to which the Court had given constitutional protection in other privacy rulings. Justice Kennedy asked Fried if he thus believed that Griswold was correct, and Fried replied “exactly,” because Griswold concerned “a right which was well established” and “quite intimate intrusions into the details of marital intimacy.” Kennedy wondered whether Griswold hence stood for “a right to determine whether to procreate,” but Fried demurred, answering that “Griswold surely does not stand for that proposition.” Kennedy inquired as to what right Griswold did represent, and Fried stammeringly responded, “the right not to have the state intrude into, in a very violent way, into the details—inquire into the details of marital intimacy.” Both Kennedy and O’Connor pressed Fried to address the question of women’s liberty interests, and as Fried sought to maintain his “search and seizure” emphasis, he tacitly reached back into his own personal history, telling Kennedy that “That is how the Court analyzed the matter in Griswold. That is how Justice Harlan analyzed the matter in his dissent in Poe v. Ullman, which is, in some sense, the root of this area of law.”

Justice Brennan forced Fried to acknowledge that Griswold was, of course, a Fourteenth Amendment case, not a Fourth Amendment holding, and when Frank Susman, the lead attorney for Reproductive Health Services, replaced Fried at the podium, he termed his predecessor’s argument “somewhat disingenuous.” “There no longer exists any bright line between the fundamental right that was established in Griswold and the fundamental right of abortion that was established in Roe,” Susman explained. “These two rights, because of advances in medicine and science, now overlap. They coalesce and merge,” and “we need to deal with one right, the right to procreate. We are no longer talking about two rights.” Susman’s presentation was far more articulate than most, and he invoked the classic 1937 due process language of Palko in telling the Court that “Procreational interests are indeed implicit in the concept of ordered liberty, and neither liberty nor justice would exist without them. It is truly a liberty whose exercise is deeply rooted in this nation’s history and tradition.”108

At the justices’ private conference on April 28, William Rehnquist set the tone for the Webster discussion by saying that he “Disagrees with Roe v. Wade” and that on all particulars, the Missouri restrictions should be affirmed and the circuit court decision that had voided them reversed. Justices White, O’Connor, Scalia, and Kennedy largely agreed, and with even John Stevens saying that he believed the appellate ruling was partially in error, Thurgood Marshall tallied only himself, Bill Brennan, and Harry Blackmun as being in dissent. Three days later the Chief Justice formally assigned himself the majority opinion in Webster, and within less than four weeks Rehnquist circulated an initial twenty-three-page draft to his colleagues. After successive sections discussed each of the Missouri provisions, Rehnquist’s final paragraph concluded that Webster “affords us no occasion to revisit the holding of Roe” and hence “we leave it undisturbed,” even while acknowledging that “we modify and narrow Roe and succeeding cases” by upholding the Missouri regulations. Byron White and Anthony Kennedy each joined Rehnquist’s opinion without delay, and John Stevens sent the Chief Justice a long letter of response, explaining that while some portions were “extremely persuasive,” one section—sustaining a statutory mandate that physicians comprehensively test for fetal viability prior to any abortion where the pregnancy appeared to be “twenty or more weeks gestational age”—was “a different story.” Here, Stevens told Rehnquist, “you make no attempt to explain or justify your new standard” of review—whether such a regulation “reasonably furthers the state interest in protecting potential human life”—a standard under which

the woman’s interest in making the abortion decision apparently is given no weight at all. A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test. Because the test really rejects Roe v. Wade in its entirety, I would think that it would be much better for the Court, as an institution, to do so forthrightly rather than indirectly.

Stevens pointed out that Rehnquist paradoxically was upholding the viability testing requirement while otherwise suggesting that the state interest in potential life was of equivalent weight throughout pregnancy, and hence the viability test actually was analogous to many other restrictions which likewise would pass Rehnquist’s new test:

They do further the state’s interest in protecting potential human life because they place an additional burden on the abortion decision, but the same result could be accomplished by requiring tests of the woman’s knowledge of Shakespeare or American history.

As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.

Three full weeks after Stevens’s piercing note, Harry Blackmun circulated a draft dissent. He highlighted how “the majority labors to obscure what is at stake in this monumental case and to cloak what it actually has decided.” The fact was that “the two isolated dissenters in Roe, after all these years, now have prevailed,” for Rehnquist’s claim that Roe was “undisturbed” was “totally meaningless.” “The simple truth,” Blackmun asserted, “is that Roe no longer survives … I rue the violence that has been done to the liberty and equality of women. I rue the violence that has been done to our legal fabric and to the integrity of this Court.” Given the evasiveness of Rehnquist’s opinion, Blackmun declared, “the majority invites charges of cowardice and illegitimacy to our door. I cannot say that these are undeserved.”

Both Brennan and Marshall immediately endorsed Blackmun’s circulation, and the very next day Sandra O’Connor circulated a concurrence indicating she would join only three of the five principal parts of Rehnquist’s prospective majority opinion. Four days later Nino Scalia distributed a concurrence of his own joining only the same portions of the Rehnquist opinion as O’Connor, and John Stevens circulated a separate statement endorsing but a single section of the Rehnquist draft. The following day Rehnquist distributed an updated reprint, now acknowledging that while three parts would indeed speak for a majority of the Court, the crucial portion which John Stevens had so disparaged four weeks earlier would carry the votes of only himself, Byron White, and Anthony Kennedy. Six days later, on July 3, the final day of the Court’s 1988–1989 term, the somewhat fragmented and definitely less than decisive judgment in Webster v. Reproductive Health Services was publicly announced.109

The first two substantive sections of Rehnquist’s opinion spoke for a five-justice majority—O’Connor and Scalia as well as White and Kennedy—in reversing the circuit court’s invalidation of a legislative preamble declaring that “The life of each human being begins at conception” and likewise upholding a statutory ban on any public facility or public servant assisting in the performance of an abortion. As to the latter, Rehnquist explained that “Missouri’s refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all.” Compared to the Court’s earlier decisions in Maher and Harris, this prohibition was “considerably less burdensome” than the denial of public funding, but the bottom line was that “the State need not commit any resources to facilitating abortions.” The entire Court agreed that a third segment of the Missouri regulations merited approval, and on the crucial provision mandating viability testing, both O’Connor and Scalia agreed with Rehnquist’s core trio that the requirement should not be struck down, but they declined to endorse the analysis which Rehnquist proffered on its behalf.

The “rigid trimester analysis … enunciated in Roe,” Rehnquist stated for himself, White, and Kennedy, “is hardly consistent with the notion of a Constitution cast in general terms,” for the “key elements of the Roe framework—trimesters and viability—are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle.” He went on to say that “we do not see why the State’s interest in protecting potential human life should come into existence only at the point of viability,” and volunteered somewhat defensively that Griswold, “unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe.” The concluding three-vote section of Rehnquist’s opinion retained the characterization of Roe as “undisturbed” that Blackmun had earlier mocked, but the previous declaration that “we modify and narrow Roe” had been slightly changed to now promise only that “we would modify and narrow Roe.”

In her concurring opinion, Sandra O’Connor stated that “Unlike the plurality, I do not understand these viability testing requirements to conflict with any of the Court’s past decisions,” and she pointedly emphasized that “When the constitutional invalidity of a State’s abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.” Requiring the viability tests, she explained, “does not impose an undue burden on a woman’s abortion decision,” especially since “the State’s compelling interest in potential life postviability renders its interest in determining the critical point of viability equally compelling.”

Antonin Scalia’s concurrence took a far different stance than O’Connor’s. Like John Stevens and Harry Blackmun previously, Scalia too agreed that the viability section of Rehnquist’s opinion that O’Connor had not joined “would overrule Roe.” Scalia emphasized that “I think that should be done, but would do it more explicitly,” and he expressed regret that “today we contrive to avoid doing it.” Abortion, Scalia declared, was a field where the Supreme Court “has little proper business since the answers to most of the crucial questions posed are political and not juridical,” and he volunteered that O’Connor’s assertion that Webster did not require the Court to confront Roe “cannot be taken seriously.” The judicial result, Scalia added, is “a chaos that is evident to anyone who can read and count,” and he went on to ridicule O’Connor’s adoption of the “undue burden” standard, saying with regard to Missouri’s viability testing requirement that “I know of no basis for determining that this particular burden (or any other for that matter) is ‘due.’” Finally, Scalia expressed exasperation at “the irrationality of what we do today” and dismissively labeled O’Connor’s treatment of viability as “similarly irrational.”

However annoyed Scalia and O’Connor might have been with each other as the fourth and fifth votes in such an outspokenly discordant majority, the dissenters were even less happy. John Stevens in the end disagreed with almost every portion of Rehnquist’s holding, but the principal dissent, in which both William Brennan and Thurgood Marshall joined, was Harry Blackmun’s. The lack of majority support for Rehnquist’s viability section had allowed Blackmun to dilute some of the most dire comments that had appeared in his first draft, but he still warned how “at every level of its review” the Rehnquist opinion obscured its intentions except for “winks, and nods, and knowing glances … The simple truth is that Roe would not survive the plurality’s analysis.” Almost poetically, Blackmun said “I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.”

Blackmun highlighted how “in flat contradiction to Roe,” the Rehnquist opinion “concludes that the State’s interest in potential life is compelling before viability,” and he avowed that the plurality’s attack upon Roe’s trimester framework was merely “a mask for its hostility to the constitutional rights that Roe recognized.” Blackmun noted that neither the plurality nor O’Connor now made any reference to O’Connor’s unfounded 1983 claim in Akron that Roe was on a “collision course” with itself, and he characterized Rehnquist’s assertion that Webster would leave Roe “undisturbed” as “unadulterated nonsense.” Blackmun underscored how “In a Nation that cherishes liberty,” a woman’s ability to determine “whether or not to carry a fetus to term must fall within that limited space of individual autonomy that lies beyond the will or the power of any transient majority.” In Roe, he reiterated, “we did no more than discharge our constitutional duty,” and while “For today, at least, the law of abortion stands undisturbed,” Blackmun warned in closing that the indications of reversal “are evident and very ominous, and a chill wind blows.”110

Right to life groups welcomed the announcement of Webster as a landmark victory, while many pro-choice activists insisted that Roe’s funeral was indeed at hand. James Bopp, Jr., the general counsel of the National Right to Life Committee, asserted that “Roe is dead” and that “Roe and its progeny are de facto overruled,” but more prudent observers quickly stressed that in essence Webster “decided nothing at all” and that the decision “actually is notable as much for the Court’s caution and indecision as anything else.” Two commentators castigated the Rehnquist opinion for trying to use a “backdoor approach” to “eviscerate Roe without explicitly overruling” it, an attempt that they condemned as failing to meet even “the most minimal standards of sound judicial decision-making.” Abortion rights litigators, however, took particular note of how the tone of Justice O’Connor’s concurrence “was significantly less hostile to Roe” than her 1983 and 1986 abortion opinions. For arguments in future abortion cases, two prominent law professors noted, “the real audience is one woman,” for Sandra O’Connor “is in the position single-handedly to decide the future of abortion rights.”111

The very same day that the high court handed down Webster, it accepted three abortion appeals from Minnesota, Ohio, and Illinois for argument during its upcoming 1989–1990 term. The enormous public reaction to Webster, however, centered far less on the Court’s potential next step than on the new opportunities for state restrictions on abortion that the decision had made possible, and while a swiftly completed Gallup Poll showed that 53 percent of Americans disagreed with Webster, right to life proponents in many states swung into immediate action. Florida Governor Bob Martinez called a legislative session to consider new antiabortion measures, and like-minded legislators in Louisiana announced an all-out effort to return that state’s law to a pre-Roe status whereby only those abortions necessary for saving a woman’s life would be allowed.

Webster’s signal that states could now significantly restrict abortion access was an even greater stimulus to pro-choice supporters than for right to lifers, and by early fall it was clear that Webster had given abortion rights advocates a considerable political boost. In mid-October Governor Martinez’s legislative attempt went down to an embarrassing, nationally publicized defeat just a few days after the Florida Supreme Court had all but unanimously decreed that the privacy language added to Florida’s state constitution nine years earlier—“Every natural person has the right to be let alone and free from governmental intrusion into his private life”—guaranteed a woman’s right to choose abortion independent of whatever the U.S. Supreme Court might do in the federal realm. A measurable increase in pro-choice sentiment was also visible in the U.S. Congress, but the two most important manifestations of the new, post-Webster politics of abortion came in Virginia and New Jersey, the only two states with 1989 gubernatorial elections. Two outspokenly pro-choice Democrats—L. Douglas Wilder and Jim Florio—were opposing two antiabortion Republicans, and even well in advance of the actual November tallies, all evidence pointed to how significant an advantage both Wilder and Florio enjoyed because of their pro-choice stances. When both men did indeed prevail in the November 7 balloting, political observers all across the nation concluded that in the wake of Webster, an antiabortion position could be a serious hindrance for a candidate even in relatively conservative states.112

One state where the antiabortion consensus was not shaken by Webster, however, was Pennsylvania, and less than two weeks after the Virginia and New Jersey elections, Pennsylvania Governor Robert P. Casey signed into law an “Abortion Control Act” that had passed both houses of the state legislature by overwhelming margins. Several days later, the pro-choice plaintiffs in the Illinois abortion case which was scheduled for Supreme Court oral argument the very next week obtained an advantageous settlement from state Attorney General Neil Hartigan. Hence when the high court convened on November 29 to hear the abortion appeals it had accepted five months earlier, only Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health remained on its docket, and the questions they presented were limited to issues of parental notification and consent with regard to pregnant teenagers. Hodgson, with pioneering physician Jane Hodgson as the lead plaintiff, had successfully challenged a state statute requiring advance notice to both parents of any pregnant teenager’s request for an abortion, but the Eighth Circuit Court of Appeals, in a 7 to 3 en banc vote, had partially reversed the district court decision. Hodgson’s attorneys had petitioned for Supreme Court review, while in the Ohio case, where the state had sought review, the Sixth Circuit Court of Appeals had affirmed a lower court invalidation of a somewhat similar notification measure. After hearing the oral arguments, some of the nine justices were both frustrated and befuddled by the degree of statutory minutiae the two cases presented. Although the initial conference discussion indicated that a tentative majority favored invalidating the Ohio statute and approving the Minnesota one, Sandra O’Connor, after further consideration of both cases with John Stevens, changed each of her votes so as to favor reversal of the circuit court results in both Akron Center and in Hodgson, so that now the Ohio statute would be approved while the Minnesota one would be rejected. Chief Justice Rehnquist assigned the majority opinion in Akron Center to Anthony Kennedy, while John Stevens took charge of writing on behalf of the five justices—himself, Brennan, Marshall, Blackmun, and O’Connor—who would reject Minnesota’s parental notification statute.113

Early in 1990 a federal district court blocked the implementation of much of Pennsylvania’s new abortion measure, and in the American territory of Guam, another federal district court judge enjoined enforcement of a far more comprehensive antiabortion statute that had been approved by both the legislature and the governor. Idaho Governor Cecil Andrus vetoed a model antiabortion law that right to life forces had propelled through the state legislature, and the National Conference of Catholic Bishops garnered front-page coverage—and widespread criticism—with the announcement that they had hired the public relations firm of Hill & Knowlton to produce a multimillion dollar antiabortion propaganda campaign. In late April right to life forces mounted a march of more than 200,000 people in Washington, D.C., but far more notable—and certainly more surprising—was the stunning news that Connecticut, thanks to explicit support from the state’s Pro-Life Council and at least tacit approval from the Hartford Archdiocese, had enacted a new statute affirmatively codifying the provisions of Roe v. Wade. Simple and direct—“(a) The decision to terminate a pregnancy prior to the viability of the fetus shall be solely that of the pregnant woman in consultation with her physician. (b) No abortion may be performed upon a pregnant woman after the viability of the fetus except when necessary to preserve the life or health of the pregnant woman”—the Connecticut law was a landmark pro-choice achievement. Pro-Life Council executive director Regina Smith, a ranking officer of the National Right to Life Committee, defended her group’s action on the grounds that the postviability prohibition was a worthy attainment, but a small band of abortion opponents opposed the measure until the end, charging that the prolife leadership had been “snookered.” When the state senate sent the bill to Governor William O’Neill for his signature on a final vote of 32 to 3, the most vociferous of the three opponents was Waterbury Republican Thomas F. “Tim” Upson, whose views differed enormously from those of his now eighty-six-year-old father.¹¹⁴

Although the Connecticut accomplishment was indeed unique, pro-choice forces gradually were beginning to appreciate that right to life political opposition was not the only significant hurdle they were facing. “The legal struggle over abortion rights in the United States,” one sympathetic observer pointed out, “has consistently taken for granted that so long as abortion is legal, physicians will be trained and available to perform them.” Increasingly, however, evidence indicated that “More Doctors Shun Abortion,” as a front-page New York Times headline put it. With over 85 percent of all abortions now being performed in specialized clinics rather than in full-service hospitals, “doctors who perform abortions say they are being heavily stigmatized” and feel “largely isolated from medical colleagues.” Only some 12 percent of obstetrics and gynecology residency programs for new physicians were providing abortion training, and professional lack of interest, rather than actual opposition or fear of Operation Rescue harassment, seemed to characterize the dwindling medical commitment. Many clinics reported difficulties in recruiting doctors, even though the scientific consensus regarding abortion appeared sturdier than ever before. “The question of when the fetus acquires humanness,” two even-handed experts explained, “comes down to this: When do nerve cells in the brain form synapses?” That takes place between the twenty-fifth and thirty-second weeks of gestation, and while pregnancy is “a period in which it is hard to draw discrete boundaries,” that combination of brain development with the onset of fetal viability at twenty-four to twenty-six weeks gestation meant that “humanness and the ability to survive outside the womb develop at the same time.”115

Unlike Webster, viability was not an issue in Hodgson or Akron Center, but between January and June of 1990 the Supreme Court, especially Justices Stevens and O’Connor, continued to wrestle privately with the tentative decisions that had been reached concerning Minnesota and Ohio’s parental notice provisions. In mid-January, John Stevens changed his mind and decided he could largely join Anthony Kennedy’s majority position in Akron Center. Two months later, Sandra O’Connor similarly endorsed all but one section of Kennedy’s opinion, and twelve weeks after that, O’Connor informed her colleagues that in Hodgson she would now support only one half of Stevens’s tentative majority and would instead side with Kennedy, White, Rehnquist, and Scalia to hold that the other portion of the Minnesota law, mandating notification but also providing young women with a “judicial bypass” option, would indeed pass legal muster.¹¹⁶

On June 25, 1990, the two decisions in Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health were publicly announced. While most news coverage focused upon how a five-justice majority had upheld the notification-with-bypass portion of the Minnesota law, the most important although widely overlooked aspect of the rulings was O’Connor’s joining with Stevens, Brennan, Marshall, and Blackmun to hold that Minnesota’s two-parent notice requirement “does not reasonably further any legitimate state interest.” It was the first time in her entire nine years on the Court that Sandra O’Connor had voted to invalidate any abortion restriction, and a supplemental opinion by Thurgood Marshall, speaking for himself, Brennan and Blackmun, reiterated that “Roe remains the law of the land” and stressed how that part of Hodgson “reaffirms the vitality of Roe.” The Kennedy opinions in both Hodgson and Akron Center were understated and moderate, but a separate concurrence by Antonin Scalia restated his fervent view that “the Constitution contains no right to abortion” and that “the Court should end its disruptive intrusion into this field as soon as possible.”117

Most abortion news in the immediate wake of Hodgson and Akron Center concerned an ultimately unsuccessful effort by antiabortion legislators in Louisiana to enact a rigid ban despite successive vetoes by Governor Buddy Roemer, but a far more crucial event took place on July 20, when Justice William J. Brennan, a veteran of thirty-four years on the Supreme Court, announced his retirement at age eighty-four. Just three days later, President George Bush nominated a little-known, fifty-year-old federal circuit judge from New Hampshire, David H. Souter, as Brennan’s successor. Widespread efforts to discover what views, if any, Judge Souter might have on abortion proved completely unavailing, and at his mid-September confirmation hearings before the Senate Judiciary Committee, Souter politely declined to address the status of Roe v. Wade while emphasizing that “the due process clause of the Fourteenth Amendment does recognize and does protect an unenumerated right of privacy.” Acknowledging a preference for John Harlan’s approach in Griswold, Souter impressed the committee as a thoughtful moderate, and on October 2 the full Senate by a vote of ninety to nine confirmed him as the newest and most junior member of the Supreme Court.¹¹⁸

The only abortion-related case on the Court’s 1990–1991 docket, Rust v. Sullivan, was a challenge to the gag rule that the U.S. Department of Health and Human Services had imposed on all medical organizations that received federal funds under Title X of the Public Health Service Act, prohibiting their doctors from in any way counseling or referring patients with regard to abortion. A 2 to 1 panel of the Second Circuit Court of Appeals had upheld the new regulations not long before two other Circuit Courts, the First and the Tenth, had found them unconstitutional, and in May 1990 seven justices had agreed that the Supreme Court should review the Second Circuit’s decision. At oral argument on October 30, brand-new Justice Souter seemed somewhat skeptical of Solicitor General Kenneth W. Starr’s defense of the gag rule, but when the justices assembled for their private conference on Friday, November 2, a narrow majority of five—Rehnquist, White, Scalia, Kennedy, and Souter—readily agreed that the regulations were constitutionally acceptable. Rehnquist assigned the majority opinion to himself, and four weeks later he circulated an initial draft. Only Byron White responded with an immediate endorsement, and early in 1991, as Harry Blackmun prepared a draft dissent, both Scalia and Kennedy recommended changes that the Chief Justice willingly adopted. By late February both of them had formally joined Rehnquist’s opinion, but more than two additional months passed before David Souter suggested some further modifications that Rehnquist amiably incorporated after making only minor alterations. A reference to “traditional zones of free expression” had to be eliminated, Rehnquist privately told Souter, because otherwise “I fear it will give rise to an entire new body of doctrine based on that phrase—and I don’t think we need any new doctrines in the First Amendment area.” Likewise, Rehnquist also expanded an assertion that the regulations “do not impinge upon the doctor-patient relationship” to “do not significantly impinge,” explaining that “I do not feel that we can categorically say that it does not impinge at all” and warning that “if we say it doesn’t impinge at all I am sure that Harry could find some examples, however obscure, indicating contra to incorporate in his dissent.”119

Shortly thereafter, Souter too formally endorsed Rehnquist’s opinion, and on May 23, 1991, the 5 to 4 decision in Rust v. Sullivan was publicly announced. Rehnquist asserted that the federal government “is exercising the authority it possesses under Maher and Harris,” the earlier abortion funding cases, and that in this instance as in those, “the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.” The “difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral,” he candidly admitted, “leaves her in no different position than she would have been if the government had not enacted Title X.” Additionally, the majority also insisted, in the language that Souter and Rehnquist had both worked on, that the gag rule regulations “do not significantly impinge upon the doctor-patient relationship. Nothing in them requires a doctor to represent as his own any opinion that he does not in fact hold.” A physician, they contended, “is always free to make clear that advice regarding abortion is simply beyond the scope of the program.”

Sandra O’Connor and John Stevens each filed individual dissents as well as joining different portions of Blackmun’s dissent, but in a part of his dissent that also spoke for Thurgood Marshall as well as Stevens, Blackmun reiterated that Roe v. Wade and its progeny “are not so much about a medical procedure as they are about a woman’s fundamental right to self-determination … ‘Liberty,’ if it means anything, must entail freedom from governmental domination in making the most intimate and personal of decisions.”120

At the very same November 2 conference where the justices had resolved Rust, they had also voted not to hear the most notable gay rights case since Bowers, Watkins v. U.S. Army. Sergeant Perry J. Watkins, who had told the Army about his homosexual orientation both when he was drafted into the service in 1967 and again following 1971 and 1974 reenlistments, had filed suit in federal court nine years earlier, in 1981, when the Army had moved to discharge him because he was gay. U.S. District Judge Barbara J. Rothstein, citing a 1975 review in which the Army had expressly decided not to discharge Watkins because of his sexual preference—and the fact that Watkins was a female impersonator whose performances had been covered by the Army Times newspaper as early as 1971—had blocked both the discharge and a subsequent Army effort to deny Watkins another reenlistment. A Ninth Circuit Court of Appeals panel had reversed the reenlistment ruling and sent the case back to Rothstein for further action, and after she dutifully upheld the Army’s refusal, Watkins took another government job and sought further review by the Ninth Circuit. In February 1988 a three-judge appellate panel had ruled for Watkins on the grounds that the Army’s regulations punished soldiers simply on the basis of sexual orientation, rather than for sexual acts, a distinction which the panel majority held was constitutionally unacceptable even in the wake of Bowers v. Hardwick. One member, however, Circuit Judge Stephen Reinhardt, reluctantly disagreed, saying that although he believed the Supreme Court had “egregiously misinterpreted the Constitution in Hardwick,” his colleagues erroneously were refusing to acknowledge that Hardwick represented the Supreme Court’s “willingness to condone anti-homosexual animus in the actions of the government,” such as the Army’s behavior toward Watkins. As appellate judges they were required to follow that mandate, no matter how mistaken it might be. Reinhardt predicted that in time “history will view Hardwick much as it views Plessy,” the Supreme Court’s infamous 1896 endorsement of racial segregation, and said that he was “confident that, in the long run, Hardwick, like Plessy, will be overruled by a wiser and more enlightened Court.”

Fifteen months later, in May 1989, a reconsideration of the panel decision by an eleven-judge en banc sitting of the Ninth Circuit resulted in a 7 to 4 ruling in favor of Watkins and against the Army, but this time simply on contractual rather than constitutional grounds. After considerable delay, the Bush administration requested Supreme Court reversal of even this modest holding, perhaps because in early 1990 the high court had turned aside a petition from an openly lesbian Army sergeant, Miriam Ben-Shalom, whose initial federal district court success in contesting a highly similar discharge action had been reversed by a hostile Seventh Circuit panel in August 1989. Without dissent, however, the Supreme Court turned aside the Bush administration’s petition that it review Watkins just as it had Ben-Shalom’s request nine months earlier, and some weeks later the Army agreed to grant Sergeant Watkins full retirement benefits and one hundred thirty-five thousand dollars in back pay.121

While the Supreme Court thus avoided two contrasting if not contradictory opportunities to revisit the basic issue it had dealt with so disdainfully four years earlier in Bowers, other appellate rulings continued to take place in cases almost as unusual as Michael Hardwick’s. The Rhode Island Supreme Court unanimously upheld a Family Court child custody order, requested by a divorced woman’s ex-husband, prohibiting her from having overnight male visitors whenever her three children were at home, and the U.S. Supreme Court declined review. In Maryland, an intermediate appellate court, reasoning that Bowers had expressly limited Griswold’s privacy protection to marital sexuality, affirmed a five-year felony sentence that one Steven Schochet had received after being convicted under the state sodomy statute for consensual, heterosexual fellatio. Concluding that Bowers likewise had now limited Eisenstadt simply to the realm of contraception, the Maryland judges explained that “The argument … that the Supreme Court has created or recognized a constitutional right of privacy for consensual, adult, heterosexual fellatio simply cannot stand.” Schochet’s attorneys appealed, and just a few weeks before the Supreme Court refused to review Watkins, a higher Maryland court hesitantly reversed the conviction. The state’s sodomy statute, it ruled, should not be applied to consensual, heterosexual, noncommercial fellatio carried out in a private home, but the judges nonetheless opined that in the wake of Bowers “the constitutional issue presented here is a very difficult one.”¹²²

More than a year later, on a decidedly more encouraging note, an intermediate court in Texas cited state rather than federal constitutional grounds for voiding Texas’s same-sex only antisodomy law. Remarking that “the Texas Constitution accords individuals greater safeguards to their personal freedom than its federal counterpart does,” the Texas judges stated that “we can think of nothing more fundamentally private and deserving of protection than sexual behavior between consenting adults in private.” Under the Texas law, they emphasized, gay people could be criminally prosecuted for “engaging in the same conduct in which heterosexuals may legally engage. In short, the State cannot make the same conduct criminal when done by one, and innocent when done by the other.”

A few months later, the Kentucky Supreme Court likewise emphasized how the Kentucky Constitution’s liberty guarantees “offer greater protection of the right of privacy than provided by the Federal Constitution as interpreted by the United States Supreme Court” and struck down Kentucky’s same-sex sodomy statute. “Sexual preference, and not the act committed, determines criminality,” the Kentucky majority noted, but dissenting Justice Donald C. Wintersheimer disparaged the privacy precedents reaching all the way back to Griswold. “‘Emanations and penumbras,’” he asserted, “are more suited to a seance or a psychic experience than to a judicial opinion at any level in any court,” for “Only the people have the right to decide what are constitutional rights” and “what are not.”123

Early in 1991, as abortion clinics across the country continued to be hit by firebombings as well as by Operation Rescue harassment of employees and patients, the Supreme Court granted an Operation Rescue request that it review a Fourth Circuit decision affirming a lower court order that had utilized an 1871 civil rights statute to prohibit abortion opponents from obstructing the entrances to Virginia clinics. Initially only three justices—Rehnquist, White and Scalia—voted to grant Operation Rescue’s petition, but several days later the necessary fourth vote suddenly materialized when Anthony Kennedy changed his mind and concluded that the appellate decision merited reconsideration. Meanwhile in Louisiana, right to life forces pushed another hard-line antiabortion bill through the state legislature and this time succeeded in overriding a gubernatorial veto, but the new law was quickly blocked by a federal district court. Operation Rescue mounted an intensive, month-long assault on abortion clinics in Wichita, Kansas, that was eventually curtailed by an energetic federal District Judge, Patrick F. Kelly, under the same law that was at issue in the Virginia case, but the Bush administration, asserting statutory tenets rather than hostility to abortion, announced its opposition to any application of the 1871 law against clinic antagonists.¹²⁴

On June 27, eighty-two-year-old Justice Thurgood Marshall announced his retirement from the high court, and four days later President Bush nominated District of Columbia appellate judge Clarence Thomas as his successor. Thomas had no track record on abortion aside from some lavish praise he had once bestowed on a rhetorically extreme right to life magazine essay, but his generally conservative views led abortion rights proponents to testify against his nomination, even though Thomas himself insisted to the Senate Judiciary Committee that he had never at any time expressed an opinion about Roe v. Wade. Thomas’s jurisprudential leanings, however, were soon overshadowed by the intense controversy sparked by Anita Hill’s allegation of sexual harassment, and when Thomas’s nomination was finally approved by the Senate on October 15 by the narrow margin of 52 to 48, no one counted him as a likely vote to reaffirm Roe v. Wade.125

The day after Thomas’s confirmation, the eight sitting members of the Supreme Court heard oral argument in Operation Rescue’s harassment appeal, Bray v. Alexandria Women’s Health Clinic. Harry Blackmun asked the Justice Department attorney who spoke on the side of Operation Rescue whether the government was “asking that Roe v. Wade be overruled,” and when the lawyer responded that “the right to abortion is not implicated here,” Blackmun replied that “It seems to me you’ve slipped a stitch somewhere.” Five days later, in a decision that made front-page news across the country, the Third Circuit Court of Appeals almost totally reversed the district court ruling that had voided Pennsylvania’s 1989 Abortion Control Act. The plaintiffs in the suit, Planned Parenthood of Southeastern Pennsylvania v. Casey, said that they would immediately appeal to the Supreme Court, and Pennsylvania Attorney General Ernest D. Preate, Jr., declared that the state too would seek high court review. Just a few months later, on January 21, 1992, the Supreme Court announced that it would hear the joint appeals sometime that spring.

Antiabortion harassment continued as one right to lifer armed with a sawed-off shotgun wounded two people at a clinic in Springfield, Missouri, before escaping, but in the state of Washington, a ballot initiative incorporating the provisions of Roe v. Wade into state law was narrowly approved by popular vote. In early March, the Supreme Court announced that oral arguments in Planned Parenthood v. Casey would take place on April 22, and several weeks later the justices granted a Bush administration motion requesting that the U.S. government be allowed to join Pennsylvania in arguing that Roe should be overturned. In early April abortion rights forces turned out more than 500,000 people for a pro-choice march in the nation’s capital, and just six days before the Supreme Court hearing in Casey, a three-judge panel of the Ninth Circuit Court of Appeals declared that Roe v. Wade was indeed still the law of the land while affirming the earlier district court invalidation of Guam’s new antiabortion law.126

The April 22 oral argument in Planned Parenthood of Southeastern Pennsylvania v. Casey was widely heralded as the most important event in abortion litigation since January 1973. Kathryn Kolbert, a widely experienced ACLU attorney, was the lead counsel for the petitioners, and her initial remarks to the Court firmly enunciated the plaintiffs’ resolutely determined stance:

Whether our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case.

Since this Court’s decision in Roe v. Wade, a generation of American women have come of age secure in the knowledge that the Constitution provides the highest level of protection for their child-bearing decisions.

This landmark decision, which necessarily and logically flows from a century of this Court’s jurisprudence, not only protects rights of bodily integrity and autonomy, but has enabled millions of women to participate fully and equally in society.

Kolbert emphasized that Casey’s issues were virtually identical to those which the Court had considered six years earlier while reaffirming Roe in Thornburgh v. ACOG, and she forcefully noted that “Never before has this Court bestowed and taken back a fundamental right that has been part of the settled rights and expectations of literally millions of Americans for nearly two decades.” No justice interrupted Kolbert’s impressively articulate opening until Sandra O’Connor spoke up. “You’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe v. Wade in all its aspects,” she observed, tersely asking Kolbert whether she planned to address the specific questions posed by Pennsylvania’s abortion restrictions. Kolbert responded affirmatively, pointing out that in addition to Pennsylvania’s spousal notification requirement, which the lower courts had annulled, regulations identical to two other Pennsylvania measures, mandating state-prescribed “counseling” and then a twenty-four-hour “waiting period” before an abortion could be performed, had been struck down in Thornburgh and before that in Akron.

Antonin Scalia engaged Kolbert in an extended colloquy after she commented that pursuant to Brown, Griswold, and Loving, the scope of American liberty could not be restricted only to rights that were expressly recognized when the Fourteenth Amendment was ratified in 1868. Anthony Kennedy, just like O’Connor, encouraged Kolbert to address the specifics of Pennsylvania’s provisions, but Kolbert again responded by reiterating that the single most crucial question was whether the “strict scrutiny” standard which the Court had applied in all abortion cases from Roe through Thornburgh—but not in Webster—would or would not be the criterion employed here. Chief Justice Rehnquist interjected two brief questions, but Kolbert encountered few additional interruptions, and she reserved her three final minutes of time for rebuttal.

Pennsylvania Attorney General Ernest D. Preate, Jr., had barely uttered his second sentence before Harry Blackmun broke in to remind him that Roe “does not provide for abortion on demand” and to ask him “Have you read Roe?” Preate assured Blackmun that he had, but he was able to resume his presentation only briefly before Sandra O’Connor peppered him with more than half a dozen questions after he contended that the state’s spousal notice requirement should pass muster under O’Connor’s “undue burden” standard. Both John Stevens and Anthony Kennedy followed up on O’Connor’s skeptical questions, and then Antonin Scalia—who had dismissively attacked O’Connor’s standard in Webster—asked Preate how he should go about determining what was an undue burden. Both Stevens and O’Connor also joined in asking Preate to describe the standard, and O’Connor moved on to quiz Preate as to whether the notification provision, by compelling a woman to speak, might present a First Amendment issue. Preate in his final moments explicitly requested that the Court overturn both Akron and Thornburgh as being “unwarranted extensions of Roe,” and his time expired as Justice David Souter confronted him with an additional question about spousal notification.

U.S. Solicitor General Kenneth W. Starr began his remarks by saying that the Court should apply in Casey the minimal standard of review that Chief Justice Rehnquist had articulated in the plurality opinion in Webster. John Stevens broke in to ask Starr what position the government took on the question of whether a fetus was a Fourteenth Amendment person, and Starr replied that the government did not have one. O’Connor and Scalia each followed up on Stevens’s query, and when Stevens prodded Starr again, Scalia had to come to the solicitor general’s rescue. David Souter observed that even a complete prohibition of abortions would meet Webster’s rational basis standard, and Starr replied that a statute which failed to provide a life-of-the-mother exception could face “very serious questions.” Souter pressed Starr further, but the solicitor sought to demur, leading Souter to tell him that “you’re asking the Court to adopt a standard and I think we ought to know where the standard would take us.” John Stevens spoke up in agreement, reiterating Souter’s point that rational basis review would allow for a total prohibition accompanied by criminal penalties. Starr replied that any law lacking a maternal life exception would not pass such a test, and with his time at an end, Kathryn Kolbert returned to the podium for her final three minutes. She politely highlighted Starr’s seeming acknowledgment that any statute other than a complete prohibition would survive Webster-style scrutiny, and in closing she challenged the Court to reaffirm both that “the right to choose abortion is fundamental” as well as Roe itself.127

Kolbert had vastly outperformed her two fellow advocates, but in the wake of the Casey argument, few observers saw any prospects for Roe beyond a further Webster-style slide into feeble irrelevancy. Scalia and the Rehnquist-White-Kennedy trio from Webster all remained in place, and although newly seated Justice Clarence Thomas had not said a word during the Casey hearing, he—if not David Souter, who of course had joined the Rehnquist-Scalia quartet in Rust just twelve months earlier—would almost certainly provide the fifth anti-Roe vote that Sandra O’Connor had refused to furnish back in Webster. Harry Blackmun and John Stevens alone remained from the once-large ranks of Roe supporters, and even the ostensibly liberal New Republic, in an editorial denouncing the “brazen judicial activism” of 1973, called upon the Court to “Dump Roe.” In early June, the Court announced without further comment that Bray v. Alexandria Women’s Health Clinic would be passed over and set for reargument sometime in the fall, and most observers concluded that if the Court was deadlocked at 4 to 4 over Operation Rescue’s appeal, newly arrived Justice Thomas would become the deciding vote.¹²⁸

Hence on Monday morning, June 29, 1992, the final day of the Supreme Court’s term, virtually no one in the press or spectator sections of the courtroom was at all prepared for what ensued after the Chief Justice announced that the decision in Planned Parenthood of Southeastern Pennsylvania v. Casey was ready for announcement. For more than twenty-three years, ever since the Little Rock school case of Cooper v. Aaron, when all nine justices had jointly signed their names to a ringing reaffirmation of Brown v. Board of Education of Topeka, every signed opinion of the Court had borne the name of a single principal author. But on this day, in what scholars would later acknowledge as the most important statement by the Court in more than twenty-eight years, the decisive opinion in Planned Parenthood v. Casey would jointly bear the names of three coauthors: Sandra Day O’Connor, Anthony M. Kennedy, and David H. Souter.

Only on unusual occasions would any justice recite a sizable portion of a decision from the bench, but on this morning all three of the coauthors would read successive sections of their joint opinion, sections that had also been joined by both Harry Blackmun and John Paul Stevens, thus making them a full-fledged majority holding. As the realization of what the trio had wrought spread through the courtroom, tears came to the eyes of even experienced journalists as the language of the joint opinion gradually made more and more clear that the constitutional legacy of Roe v. Wade was not dead but instead was very much alive.

“Liberty finds no refuge in a jurisprudence of doubt,” the trio’s opinion memorably began. They indicated that they disagreed with the starkly alternative options that Kathryn Kolbert had pressed upon the Court at oral argument, but they acknowledged that “our decisions after Roe cast doubt upon the meaning and reach of its holding.” They declared that “the essential holding of Roe v. Wade should be retained and once again reaffirmed,” and they explained that

Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

The trio went on to detail how the Fourteenth Amendment’s Due Process Clause had provided constitutional protection for individual liberty for over a century; they quoted from John Harlan’s opinion in Poe both before and after observing that “there is a realm of personal liberty which the government may not enter.” In a segment that Justice O’Connor read from the bench, the opinion spoke of how people could disagree about “the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”

In the next portion, after references to Carey, Eisenstadt, and the 1944 decision in Prince v. Massachusetts, Anthony Kennedy read from the bench that “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In abortion, he went on, “the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.” In light of the burdens a woman confronted in carrying a pregnancy to term, “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Accepting that “in some critical respects the abortion decision is of the same character as the decision to use contraception,” the opinion cited Griswold, Eisenstadt, and Carey and stated that “We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman’s liberty.” The trio added that “It was this dimension of personal liberty that Roe sought to protect, and its holding invoked the reasoning and the tradition” of those precedents in “granting protection to substantive liberties of the person. Roe was, of course, an extension of those cases,” but they emphasized that “the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.”

Undoubtedly the most powerful and eloquent section of the opinion was the ensuing discussion of Roe and stare decisis that had been crafted by David Souter. “For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Souter reviewed “the succession of cases most prominently exemplified by Griswold” and described Roe as “an exemplar of Griswold liberty.” He conceded that “time has overtaken some of Roe’s factual assumptions,” but he underscored that

the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided.

Souter went on to stress how “An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding as a doctrinal remnant,” just as “no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips.”

Then Souter moved on to the core of his argument concerning stare decisis:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.

Concluding that crucial section of the majority’s holding, Souter recapitulated how “A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.”

In a long portion of their opinion which spoke only for themselves, and not for the full five-vote majority, O’Connor, Kennedy, and Souter addressed Roe’s crucial concept of viability. Prefacing their discussion with a reminder that “Liberty must not be extinguished for want of a line that is clear,” the trio conceded that “Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care.” However, the trio said, explaining a holding that would draw the separate support of Casey’s four dissenters, “we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe’s statement that the State has a legitimate interest in promoting the life or potential life of the unborn.” Nonetheless, viability, which they characterized as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb,” was an essential part of Roe’s holding, for “there is no line other than viability which is more workable.” They bluntly added that “a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child,” but they reiterated that “the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.”

Roe, they reminded once again, “speaks with clarity in establishing not only the woman’s liberty but also the State’s ‘important and legitimate interest in potential life.’ That portion of the decision in Roe has been given too little acknowledgment by the Court in subsequent cases.” Terming Roe’s “trimester format” an “elaborate but rigid construct,” O’Connor, Kennedy, and Souter proceeded to outline Casey’s new standard:

Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.

They explained that “We reject the trimester framework, which we do not consider to be part of the essential holding of Roe,” since “in practice it undervalues the State’s interest in potential life.” They commented that “not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right,” and restated how the “rigid” trimester format “does not fulfill Roe’s own promise that the State has an interest in protecting fetal life or potential life. Roe began the contradiction by using the trimester framework to forbid any regulation of abortion designed to advance that interest before viability.”

Citing Justice O’Connor’s prior articulation of the undue burden standard, and tracing its usage all the way back to Bellotti I in 1976, the trio announced that “Not all burdens on the right to decide whether to terminate a pregnancy will be undue,” and stated that “the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.” Admitting that not all prior invocations of the undue burden criterion had been consistent, O’Connor, Kennedy, and Souter underscored how “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” They stressed that “the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it,” but they proceeded to delineate why Pennsylvania’s twenty-four-hour waiting period requirement was not an “undue burden” or a “substantial obstacle” to “the right to make family decisions and the right to physical autonomy” that Roe protected. The trio added that with regard to mandatory counseling, “a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest.” Then, after a strongly worded section, joined by Blackmun and Stevens, affirming the Third Circuit’s invalidation of the spousal notice provision, the trio—plus in one instance Stevens—proceeded to uphold two lesser-noted restrictions that had been sustained by the Third Circuit.129

The primary dissenting opinion was authored by William Rehnquist and joined by Byron White, Antonin Scalia, and Clarence Thomas. Rehnquist forthrightly declared that “We believe that Roe was wrongly decided, and that it can and should be overruled.” He asserted, after citing Pierce, Meyer, Loving, Skinner, Griswold, and Eisenstadt, that those precedents “do not endorse any all-encompassing ‘right of privacy,’” and he contended that “the Court in Roe read the earlier opinions upon which it based its decision much too broadly.” The Court “was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a ‘fundamental right,’” and the Roe Court “reached too far when it analogized the right to abort a fetus to the rights involved in Pierce, Meyer, Loving, and Griswold, and thereby deemed the right to abortion fundamental.”

Rehnquist’s second emphasis, however, was to insist that the Casey trio actually was preserving far less of Roe than it imagined. “Roe continues to exist,” the Chief Justice acknowledged, “but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.” The trio’s undue burden standard, he argued, is “plucked from nowhere” and “created largely out of whole cloth by the authors of the joint opinion,” while their substantial obstacle test “is based even more on a judge’s subjective determinations than was the trimester framework.” Roe v. Wade, Rehnquist concluded, “stands as a sort of judicial Potemkin Village, which may be pointed out to passers by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion.”130

Casey’s second dissent, written by Antonin Scalia and joined by Rehnquist, White, and Thomas, unsurprisingly took a far harsher and more sarcastic tone. Scalia mocked Kennedy’s comments concerning the “concept of existence, of meaning, of the universe,” and complained, after citing the trio’s opening statement that “Liberty finds no refuge in a jurisprudence of doubt,” that “to come across this phrase in the joint opinion—which calls upon federal district judges to apply an ‘undue burden’ standard as doubtful in application as it is unprincipled in origin—is really more than one should have to bear.” Scalia termed the trio’s standard both “inherently manipulable” and “hopelessly unworkable,” and decried “the joint opinion’s verbal shell game” while lambasting O’Connor for how this present version of “undue burden” admittedly differed from her prior usages. He complained that “It is difficult to maintain the illusion that we are interpreting a Constitution rather than inventing one, when we amend its provisions so breezily,” and he taunted the trio by derisively charging that “Reason finds no refuge in this jurisprudence of confusion.” Regaining his footing, Scalia remarked that “Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act,” but he went on to compare O’Connor, Kennedy, and Souter’s stance in Casey to that taken by Chief Justice Roger Brooke Taney in Dred Scott v. Sandford in 1856. “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”131

Both John Stevens and Harry Blackmun filed individual opinions joining the principal sections of the trio’s statement but dissenting from the validation of Pennsylvania’s “persuasive” counseling and waiting period provisions. Stevens noted that of the fifteen justices who had sat on the high court since Roe was decided, eleven—every one except for Casey’s four dissenters—had supported Roe at least to the extent of the Casey majority. Roe, Stevens explained, “was a natural sequel to the protection of individual liberty established in Griswold,” and “Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.”

Harry Blackmun’s opinion was by turns joyful, pensive, and elegiac. Three years earlier, after Webster, “All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webster,” such as Akron Center and Rust,

gave little reason to hope that this flame would cast much light. But now, just when so many expected the darkness to fall, the flame has grown bright.

I do not underestimate the significance of today’s joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.

“Make no mistake,” Blackmun went on, “the joint opinion of Justices O’Connor, Kennedy, and Souter is an act of personal courage and constitutional principle.” He highlighted all the portions of the trio’s holding that spoke for the five-vote majority, and he pointedly observed that “What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch.” He emphasized how the Court had voided the spousal notice provision, and he stressed with regard to the other restrictions which the trio had declined to void in this context of a purely facial challenge how he was “pleased that the joint opinion has not ruled out the possibility that these regulations may be shown to impose an unconstitutional burden” once they had been tested by actual practice. “I am confident,” Blackmun declared, “that in the future evidence will be produced” showing how they did indeed represent “substantial obstacles” to Pennsylvania women with unwanted pregnancies.

Blackmun restated how “compelled continuation of a pregnancy infringes upon a woman’s right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm” while also depriving “a woman of the right to make her own decision about reproduction and family planning.” By “restricting the right to terminate pregnancies,” Blackmun added, “the State conscripts women’s bodies into its service.” He firmly defended both the appropriateness of the trimester framework and the constitutional necessity of upper-level, “strict scrutiny” review of antiabortion regulations. But Blackmun saved his most pointed comments for Casey’s dissenters, remarking that “At long last, The Chief Justice and those who have joined him” had finally admitted that they did indeed want to overturn Roe v. Wade. “The Chief Justice’s criticism of Roe,” Blackmun bluntly maintained, “follows from his stunted conception of individual liberty.” Given Rehnquist’s “exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts.”

Blackmun ended on an apprehensive and deeply personal note. “In one sense,” he noted, the approach of the Casey majority

is worlds apart from that of The Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two approaches is short—the distance is but a single vote.

I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.132

Public reaction to Casey’s stunningly unanticipated result was both voluminous and oddly contradictory. Some pro-choice groups, with their judgment distorted both by organizational agendas and by pessimistic expectations, self-defeatingly tried to insist that “Roe v. Wade is dead,” while right to life activists castigated the O’Connor-Kennedy-Souter trio as “backstabbing” members of a “wimp bloc.” Editorialists welcomed the outcome, with the New York Times observing that Roe had been “a brilliant resolution of seemingly irreconcilable interests” and the Washington Post sagely suggesting that “it is possible that those who oppose the 1973 ruling have peaked in terms of their impact on the judicial aspect of this debate.” Harvard law professor Laurence H. Tribe correctly noted that the trio opinion “makes sense and puts the right to abortion on a firmer jurisprudential foundation than ever before,” and New York University’s Ronald Dworkin stated that the coauthors’ conclusions “considerably strengthen the case for Roe” by giving women’s right to choose “an even more secure basis.”

Those most upset by Casey of course included Roe’s two most consistently outspoken critics, former Judge Robert H. Bork and The New Republic. Terming the trio opinion constitutionally “radical,” Bork proclaimed that “the Constitution contains not one word that can be tortured into the slightest relevance to abortion, one way or the other.” Bork again declared that in Roe the Court had “offered no legal reasoning for taking the abortion issue from the people,” and The New Republic announced that “Casey is far less defensible than Roe” while grousing that “We can imagine any number of plausible ways that Roe might have been clearly overturned.” Expanding its criticism to cover “the questionable logic” of Griswold and even John Harlan’s dissent back in Poe, The New Republic pronounced that “It was Roe’s lack of persuasive constitutional support that made the Court look illegitimate to begin with.” Abortion, the magazine insisted in a remarkably self-contradictory oxymoron, was simply “a right that should be protected by politics.” Unsurprisingly, The New Republic failed to describe exactly what role—if any—either the Supreme Court or the Constitution would be left to play if the correct conclusion to be drawn from Griswold and Roe was that rights ought to be protected only by politics, and not by the judiciary or the law.133

Consistent with its resolution of Casey, the Supreme Court several months later declined to consider Guam’s appeal of the Ninth Circuit decision that had invalidated its hard-line antiabortion statute just a few days before the Casey argument. Both Byron White and William Rehnquist—but not Clarence Thomas—joined Antonin Scalia’s brief dissent from the Court’s refusal to hear the case,¹³⁴ and a week later the Court also denied a request to review a Fifth Circuit ruling that had cited Casey in upholding Mississippi’s imposition of a twenty-four-hour waiting period requirement similar to Pennsylvania’s.¹³⁵ Early in 1993 the Court also dismissed Louisiana’s appeal of the lower court decisions that had voided its all but complete ban on abortions, and not long thereafter the justices additionally refused to stay the enforcement of a new twenty-four-hour waiting period provision in North Dakota.136

Early in January 1993, however, in a 6 to 3 decision authored by Antonin Scalia and joined by Byron White, William Rehnquist, Anthony Kennedy, Clarence Thomas, and, in large part, David Souter, the Supreme Court reversed the Fourth Circuit’s decision in Jayne Bray v. Alexandria Women’s Health Clinic and vindicated Operation Rescue’s claim that the Ku Klux Klan Act of 1871 could not be used by federal judges to combat right to lifers’ physical harassment and obstruction of abortion clinics. Writing in dissent, John Stevens observed that “the error that infects the Court’s entire opinion is the unstated and mistaken assumption that this is a case about opposition to abortion. It is not. It is a case about the exercise of federal power to control an interstate conspiracy to commit illegal acts.” Sandra O’Connor, whose dissent, like Stevens’s, was joined by Harry Blackmun, likewise concluded that “This case is not about abortion” but “whether a private conspiracy to deprive members of a protected class of legally protected interests gives rise to a federal cause of action.”¹³⁷

On January 22, 1993, the twentieth anniversary of Roe v. Wade and Doe v. Bolton, newly inaugurated President Bill Clinton revoked the Reagan-Bush ban on abortion counseling or referral by federally funded clinics that the Supreme Court had upheld two years earlier in Rust v. Sullivan. Abortion rights supporters celebrated the step as a tangible sign of how the United States had an outspokenly pro-choice president for the first time since Roe had been decided, but just six weeks later much of the happiness turned to horror when forty-seven-year-old Dr. David Gunn, who performed abortions at clinics in Florida, Alabama, and Georgia, was shot in the back three times and killed by a thirty-one-year-old right to life activist, Michael F. Griffin, outside a Pensacola clinic. Gunn had long been targeted for harassment by abortion opponents both in Florida and Alabama, and while Operation Rescue founder Randall Terry had repeatedly emphasized that “the doctor is the weak link,” Michael Griffin had been participating in a demonstration organized by a different but similar group, Rescue America, just moments before murdering Gunn. One witness told reporters that “It looked like they were just happy,” but Rescue America’s regional director in Pensacola, former Ku Klux Klansman John Burt, who had himself been convicted of attacking another Pensacola clinic seven years earlier, expressed pro forma regret at Gunn’s assassination. Rescue America’s national director, Don Treshman, termed Gunn’s killing “unfortunate” but emphasized that as a result, “quite a number of babies’ lives will be saved.” Treshman characterized Gunn as “a mass murderer in a class with his moral forebears in Nazi Germany and the Soviet Union,” and Michael Bray, the spouse of Jayne Bray and himself a convicted felon for a series of Washington-area clinic bombings eight years earlier, made the same point even more explicitly: “From the standpoint of preventing further murders at the hands of Dr. Gunn, the actions of Mr. Griffin could be looked at as a good thing. He should be acquitted of any charges, because his actions were done in defense of people who were scheduled to die.”

A spokesman for the National Right to Life Committee sought to dismiss Griffin as “a nutcake,” and the U.S. Catholic Conference condemned Gunn’s murder, admitting that it “makes a mockery of the pro-life cause.” But the most perceptive and astute antiabortion reactions came, quite appropriately, from Roe v. Wade’s home city of Dallas, where the president of Texans United for Life, Bill Price, frankly confessed that “there has been a philosophical or even moral groundwork laid for assassinating abortionists by certain people in the pro-life movement, and I think they bear some of the blame.” Gunn’s killing, Price emphasized, “is a defining point in the history of this struggle. Responsible leaders have to speak out against this. If they don’t, we will just become a bunch of terrorists.”

Many right-to-life activists, however, rejected Price’s judgment. Six months later, in August 1993, Rachelle “Shelley” Shannon, a thirty-seven-year-old Oregon woman who had written repeated letters of support to the imprisoned Michael Griffin, telling him that “I know you did the right thing” and “I wish I could trade places with you,” shot and wounded Dr. George R. Tiller, the well-known operator of a Wichita clinic. Tiller’s wounds were sufficiently minor that he returned to work the very next day—just as Shannon was being apprehended in Oklahoma—but some right-to-life leaders once again openly applauded the shooting. Andrew Burnett of Advocates for Life Ministries volunteered that “I’m supportive of what she did. It was a courageous act.” Dawn Stover, an Oregon colleague of Shannon’s, stated that “We have been saying abortion is murder, but we have been hypocritical in not treating it that way. Any one of us would use force to protect the lives of our children. We should not view the pre-born any differently.” Since 1973, she added, “30 million children have been killed. Now we have one abortionist dead and one wounded. My goodness, who’s winning here?”

Rescue America’s Don Treshman ominously observed that “We are sure to see more of these incidents,” and the very next day Dr. George W. Patterson, the owner of four southeastern abortion clinics, was murdered in Mobile, Alabama, under circumstances that left it unclear as to whether Patterson was an intended or a random victim. The identity of Patterson’s killer was not immediately known, but Pensacola right-to-life leader Paul Hill announced that “If indeed a pro-life individual killed Abortionist Patterson, it would be justifiable assault.”

Even prior to the shootings of Tiller and Patterson, Dallas’s Bill Price had publicly denounced the tactics of Operation Rescue and similar groups and pointedly warned that “there is a tremendous amount of hate and anger in the fringe of this movement.” Not long thereafter, Price confirmed that now even he was receiving threats of physical harm from more extreme right-to-lifers.138