Roe Ruling: More Than Its Author Intended

By David G. Savage
Los Angeles Times Staff Writer

September 14, 2005

WASHINGTON - In mid-1971, the Supreme Court agreed for the first time to hear a constitutional challenge to the long-standing state laws limiting abortion. Its decision to do so reverberates today.

At that time, Texas and 30 other states had laws, dating from the 19th century, that made an abortion a crime unless it was performed to save the mother's life.

Georgia, like California, had revised its laws in the late 1960s to permit abortion in specific circumstances: if the mother's health was endangered, if the pregnancy was caused by rape or if the fetus had a severe defect.

The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge.

He believed that doctors needed to have leeway to do medically necessary abortions. In the court's first private conference on the issue, he described Georgia's law as "a fine statute [that] strikes a balance that is fair."

Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation's abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right.

That opinion, in the case of Roe vs. Wade, remains the court's most disputed decision of recent decades. By abruptly voiding all laws against abortion, it galvanized a powerful antiabortion movement that has transformed American politics.

It also dominates public debate over the court and its future. The Senate confirmation hearing for Judge John G. Roberts Jr., like those of all recent nominees, is focusing on one question: Will he vote to uphold or to reverse Roe vs. Wade?

Blackmun's Story

Last year, on the fifth anniversary of Blackmun's death, the Library of Congress opened his papers to the public. His thick files on the abortion cases tell the little-known story of how Roe vs. Wade came to be. It is the story of a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them.

It is also the story of a sometimes rudderless court led by Chief Justice Warren Burger. On the day the ruling was announced, Burger said, "Plainly, the court today rejects any claim that the Constitution requires abortion on demand."

Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. "I fear what the headlines may be," he wrote in a memo. His statement, never issued, emphasized that the court was not giving women "an absolute right to abortion," nor was it saying that the "Constitution compels abortion on demand."

In reality, the court did just that.

Blackmun had said that abortion "must be left to the medical judgment of the pregnant woman's attending physician." So long as doctors were willing to perform abortions - and clinics soon opened solely to do so - the court's ruling said they could not be restricted from doing so, at least through the first six months of pregnancy.

But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider "all factors - physical, emotional, psychological, familial and the woman's age - relevant to the well-being of the patient."

It soon became clear that if a patient's "emotional well-being" was reason enough to justify an abortion, then any abortion could be justified.

Legal scholars have long pointed to the shaky constitutional basis for a right to abortion. Blackmun referred to the 14th Amendment, which says that a state may not "deprive any person of life, liberty or property, without due process of law."

In earlier opinions, the court had said that liberty included the concept of personal privacy. "This right to privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," Blackmun declared.

Earlier this year, 11 legal scholars, led by Yale's Jack Balkin, tried to write a better opinion. Their book of essays, "What Roe v. Wade Should Have Said," proposed several alternatives, such as saying sexual equality for women required a right to abortion.

Far less attention has focused on the all-or-nothing nature of the Roe vs. Wade ruling.

Today, as in the early 1970s, the American public appears to have decidedly mixed views on abortion. In a Gallup poll in May, for instance, only 23% of those surveyed said abortion should be "legal under any circumstances," the rule set by Roe vs. Wade.

Only 22% said abortion should be "illegal in all circumstances," the rule that could take effect in many states if the Supreme Court were to overturn Roe vs. Wade.

The largest group - 53% - said abortion should be "legal only under certain circumstances."

But Roe vs. Wade foreclosed this middle course - for the states as well as for the court. It does not give states the room to adopt what might be a popular compromise: permitting abortions during the first three months of a pregnancy, but not afterward. Nor does it permit states to authorize only "medically necessary" abortions, a reform idea of the late 1960s.

How did Blackmun and the Supreme Court produce such a broad ruling on abortion, while professing to do no such thing?

Court scholars and law clerks from the Roe era say there is no single explanation. Some say Blackmun naively thought that doctors would perform abortions only for medical reasons.

"He was thinking of this in the medical framework of Rochester, Minn. He imagined abortions would be performed by a family physician or in a hospital," said historian David J. Garrow, the author of a scholarly history of the abortion-rights movement.

The justices did not foresee the full impact of the ruling or the backlash it would set off, said Georgetown University law professor Mark V. Tushnet, who was a clerk for Justice Thurgood Marshall when Roe was decided. They focused on striking down the Texas-type laws that outlawed all abortions, he said.

"All they wanted was to get those laws off the books," Tushnet said. "They were not thinking long-term with an overall vision."

In Burger's Footsteps

Blackmun made it to the Supreme Court because of his boyhood friend, Burger.

In 1969, President Richard Nixon chose Burger to be chief justice of the United States. A year later, after Nixon tried and failed to get two Southern judges confirmed, Burger suggested his old friend. Burger and Blackmun were soon dubbed the "Minnesota Twins."

In June 1971, five justices (but neither Burger nor Blackmun) voted to hear abortion cases from Texas and Georgia.

When those cases came before the court in December 1971, only seven justices were seated. Justices Hugo Black and John Marshall Harlan, both ailing and near death, had suddenly retired. Their Nixon-appointed successors - Lewis F. Powell Jr. and William H. Rehnquist - would not join the court until January and thus would not participate in abortion deliberations that term.

At the court's private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were "health problems."

Blackmun voiced disdain for feminists who said women deserved control over their bodies. "There is no absolute right to do with one's body what you like," he said. But he agreed that the Texas law was extreme and said it did "not go far enough to protect doctors."

The Georgia law was much better, the justices said, except for a requirement that three doctors approve an abortion.

Days later, the liberal justices were irked to receive a memo from Burger saying he had chosen Blackmun to write both opinions. With little guidance from colleagues, Blackmun and his clerks began research.

Meanwhile, the court turned its attention to the death penalty. Capital punishment had been under attack, and in January 1972 the full court voted 5 to 4 to strike it down.

The ruling, handed down in June, described the states' death penalty laws as arbitrary; they sometimes treated rapists the same way they treated mass murderers. But it left room for states to try again. Most states rewrote laws to focus on those thought most deserving of execution. By 1976, the high court had upheld the revised laws and restored capital punishment.

Had abortion cases followed a similar course, the court would have required states to reform their laws to give more leeway to doctors and to pregnant women. But it would have also left states the power to prohibit abortions in some circumstances.

Blackmun's final opinion left no room for prohibitions on abortion. That was not apparent in the spring of 1972, however.

In mid-May, Blackmun wrote "a first and tentative draft" for Roe vs. Wade that stopped well short of declaring a constitutional right to abortion. Instead, it said the Texas law did not give doctors enough guidance.

Criminal laws must be clear, the court had emphasized, so people don't unwittingly commit a crime. Blackmun said Texas physicians could not be sure whether they were committing a crime by performing an abortion on a patient whose troubled pregnancy might risk her life.

"I come out on the theory that the Texas statute ... is unconstitutionally vague," he said in a memo to his colleagues on May 18, 1972. "I think that this [finding] would be all that is necessary for the disposition of the case, and that we need not get into the more complex" issues.

In retrospect, this proved to be a crucial time in the court's handling of the abortion issue. Blackmun had proposed issuing a short opinion that would have struck down the Texas law and the 30 others like it. However, it would have also left the states ample room to revise their laws.

His proposal set off a flurry of memos on what to do next.

Justices William O. Douglas and William J. Brennan, mindful that Nixon's new appointees would join the deliberations if the cases were reargued in the fall, wanted quick action and a stronger opinion.

Burger, however, wanted to go slowly. He knew the Brennan-led majority was about to announce the striking down of the death penalty on a 5-4 vote. Burger and Blackmun had dissented, as had the new Nixon appointees, Powell and Rehnquist. Burger expected the votes on abortion to line up the same way.

If the abortion cases were carried over until the fall, Powell and Rehnquist would cast their votes, and the chief justice - with Blackmun and White also on board - could envision a new 5-4 majority that would uphold most of the state abortion laws.

"This is as sensitive and difficult an issue as any in this court in my time," Burger wrote. "Hence, I vote to reargue early in the next term."

A Miscalculation

But Burger miscalculated by seeking a delay. Had Blackmun's draft opinion been adopted, it would have left states free to prohibit abortions for nonmedical reasons. However, Blackmun reluctantly joined Burger in seeking a delay, and the majority voted to put off a decision on the abortion cases until the fall.

Blackmun spent the summer working in the Mayo Clinic's library in Minnesota. He researched the history of abortion in Persian, Greek and Roman times. He also studied abortion laws adopted in 19th century America and concluded that the bans were driven not by moral imperatives but by the reality that, before antibiotics, abortion - like other medical procedures - was dangerous.

When Blackmun returned to Washington, he had a long draft. It was a thorough work of medical history, but short on constitutional law. It also was hazy on just when abortion would be permitted or prohibited.

In October, the nine justices sat through the arguments again. When they met to discuss the cases, there was a surprise. Powell, the soft-spoken Virginian who was new to the court, firmly supported a woman's right to abortion. He urged Blackmun to say it directly rather than attack the laws as vague.

For Powell, the issue was personal: When he was a lawyer in Richmond, Va., a young man came to him in despair. His pregnant girlfriend had tried to abort her fetus with his help, and she had bled to death. Powell went to the authorities to explain what happened. Thereafter, he was determined to see abortion made safe and legal.

Suddenly, there were six solid votes to strike down the Texas and Georgia laws, and Blackmun had the backing to write a broader opinion in favor of a right to abortion. The liberals, who had worried about the delay, found they had a stronger hand, and Burger found himself with no room to maneuver.

On Nov. 21, two weeks after Nixon's reelection, Blackmun sent around revised drafts of the majority opinions. The Roe opinion said that for the first three months of a pregnancy, states must "leave the abortion decision to the best medical judgment of the pregnant woman's attending physician."

In a memo to his colleagues, however, he voiced uncertainty.

"This has proved for me to be both difficult and elusive.... You will observe that I have concluded that the end of the first trimester is critical," he wrote, referring to a cutoff date for permitting abortions. "This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." The first trimester is the first three months of a pregnancy.

Brennan, Marshall and Powell wrote back to say that allowing abortions until "viability" - when a fetus has developed enough to live outside the womb - at six months made more sense.

Douglas disagreed. "I favor the first trimester, rather than viability," he said. He was outvoted, however, and Blackmun said he would revise the opinion over the Christmas holidays. In his final draft, states were told they could not restrict abortions through the second trimester.

That change would become the focus of today's legal and political battles. Opponents have especially condemned a procedure they call partial-birth abortion, which usually takes place in the fifth or sixth month of a pregnancy.

Blackmun's opinion ends by saying: "The decision vindicates the right of the physician to administer medical treatment according to his professional judgment.... The abortion decision in all its aspects is inherently, and primarily, a medical decision.... If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available."

As some scholars later said, his opinion treated the pregnant woman as a bit player in a doctor's drama.

White and Rehnquist filed dissents, but Burger delayed casting his vote. His colleagues suspected that he did not want the opinion released before Nixon's second inauguration, set for Jan. 20.

As that day approached, Burger filed a short concurrence and predicted the ruling would not have "sweeping consequences."

Blackmun's proposed press release also downplayed the potential effects of the ruling, stressing that it would not mean "abortion on demand." His court colleagues convinced him that it would be inappropriate to issue a statement that commented on a ruling.

So, on Jan. 22, 1973, Roe vs. Wade and Doe vs. Bolton were handed down as 7-2 rulings in favor of a new right to abortion. That afternoon, former President Lyndon B. Johnson died, pushing aside the abortion decisions as the biggest news story of the day.

 Roe, and the road after

Major U.S. Supreme Court decisions and other milestones related to Roe vs. Wade:

Jan. 22, 1973: In Roe vs. Wade, the court for the first time ensures nationwide access to abortion. In Doe vs. Bolton, decided the same day, the court strikes down restrictions on performing abortions only in hospitals. The decision gives rise to a new kind of medical facility, the abortion clinic.

1976: In Planned Parenthood of Central Missouri vs. Danforth, the court limits the rights of husbands and of parents of minors to veto a woman's or girl's decision to end her pregnancy.

1979: In Colautti vs. Franklin, the court reaffirms its intention to give doctors broad discretion in determining "fetal viability" - when a fetus can live outside the mother's womb.

1979: In Bellotti vs. Baird, the court implies that states may be able to require a pregnant, unmarried minor to obtain parental consent to an abortion so long as state law provides an alternative, such as letting the minor seek a state judge's approval.

1981: In H.L. vs. Matheson, the court rules that states may require doctors to try to inform parents before performing an abortion.

1983: In three decisions, the court rules that states and communities may not require that all abortions for women in their second trimester be performed in hospitals. The court also strikes down regulations that impose a 24-hour waiting period between the signing of an abortion consent form and the medical procedure and that require doctors to tell women seeking abortions that a fetus is a "human life."

1986: In Thornburgh vs. American College of Obstetricians and Gynecologists, the court strikes down Pennsylvania abortion laws similar to those rejected in 1983. It also strikes down requirements that doctors performing third-trimester abortions use procedures least risky to a fetus capable of surviving outside the womb, and that two doctors attend abortions performed in the third trimester. It invalidates a regulation requiring doctors to make a record, which could become available to the public, of every abortion they perform.

1989: The court upholds a Missouri law requiring doctors to determine, when possible, whether a fetus at least 20 weeks old is "viable," or capable of surviving outside the womb. Missouri law bans abortions of viable fetuses.

1992: In Planned Parenthood of Southeastern Pennsylvania vs. Casey, the Supreme Court upholds the core of its Roe vs. Wade ruling and bans states from outlawing most abortions. But it abandons the trimester plan and adopts a new test - abortion regulations that present an "undue burden" on women's constitutional rights will be prohibited.

2000: In Stenberg vs. Carhart, the court strikes down a Nebraska ban on what opponents call "partial-birth abortion," finding it an unconstitutional violation of Roe vs. Wade.

Sources: Los Angeles Times, Associated Press, NPR, CNN, Center for Reproductive Rights. Graphics reporting by Joel Greenberg
 

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