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Today's News & Views
October 11, 2005
"Roe Ruling: More Than Its Author Intended"
"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."
From a story by David G. Savage that appeared in the September 14,
2005, Los Angeles Times.
Once Justice Harry Blackmun's enormous cache of papers was opened to
the public in 2004, all expected that a fuller opinion of the author of
Roe v. Wade would emerge. Without getting sidetracked, the broad
outlines of this native of St. Paul, Minnesota, have not changed, but
there have been some new wrinkles that scholars and journalists
continue to try to iron out.
One of the first beneficiaries was New York Times Supreme Court
reporter Linda Greenhouse. Given a two-month head start by Blackmun's
daughters, Greenhouse produced a less-than-critical (okay, puff piece)
book on Blackmun. We talked about it at
www.nrlc.org/News_and_Views/May05/nv051205.html
In that vein I had intended to write last month about an extremely
revealing piece written by the Los Angeles Times' David G. Savage,
which ran September 14. It is no longer available free online, but I
would be happy to send you the entire essay. Just write me at
dandrusko@nrlc.org.
The two-pronged gist of his argument is straightforward. Even though
Blackmun professed to the end that Roe did NOT mean that the
"Constitution compels abortion on demand," Savage says simply, "In
reality, the court did just that."
Second, in initial drafts, Blackmun's opinion was, in fact, relatively
modest. Savage quotes a May 18, 1972, Blackmun memo:
"I come out on the theory that the Texas statute . is
unconstitutionally vague," he wrote. "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.
A word of background. Roe v. Wade addressed Texas' abortion statute,
which allowed abortion only to save the life of the mother. Roe's
companion case, Doe v. Bolton, dealt with the state of Georgia's
recently "reformed" abortion law. According to Savage, Georgia's
statute allowed abortions "if the mother's health was endangered, if
the pregnancy was caused by rape or if the fetus had a severe defect."
So, how did Blackmun go from expressing almost admiration for the
Georgia law (in the first private conference he said the law was "a
fine statute [that] strikes a balance that is fair") to a year later
writing (in Savage's words) "an opinion for the court that struck down
all of the nation's abortion laws" making "virtually all abortions
legal as a matter of a constitutional right"?
That's the story Savage tells in 2,598 well-crafted words. As I read
Savage's thoughtful account, there were five turning points.
In June 1971, five justices--but neither Blackmun nor his friend, Chief
Justice Warren Burger--voted to hear the two abortion cases. By
December, however, the High Court was two members short (two ailing
justices had suddenly retired). Their successors--Lewis F. Powell Jr.
and William H. Rehnquist--would not participate in deliberations
because they would not be joining the court until January 1972.
"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," Savage writes. Blackmun thought Texas's law did "not
go far enough to protect doctors." (In the early days before Blackmun
made defending Roe his life's work, his concern was largely, if not
exclusively, giving physicians discretion to exercise their "medical
judgment.") Except for the requirement that three doctors approve the
abortion, Blackmun liked the Georgia law, according to Savage.
The first turning point came when Burger assigned the case to Blackmun.
"With little guidance from colleagues, Blackmun and his clerks began
research," Savage writes.
Blackmun's mid-May draft focused on what he saw as the unconstitutional
"vagueness" of the Texas statute. Paraphrasing Blackmun, Savage writes,
"Criminal laws must be clear, the court had emphasized, so people don't
unwittingly commit a crime."
But "In retrospect," Savage observes, "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."
Turning point number two goes a long way towards explaining how
"Blackmun's final opinion left no room for prohibitions on abortion."
Justices William Douglas and William Brennan knew that if the case were
reargued in the fall, the two new Nixon-appointed justices would be
part of the deliberations. They wanted quick action.
But, according to Savage, with the addition of the two new justices,
Chief Justice Burger anticipated that the votes on an abortion decision
would line up the same way as the decision striking down the death
penalty did: 5-4, with Burger, Blackmun, Powell, Rehnquist, and Justice
Byron White voting (in Savage's words) "to uphold most of the state
abortion laws."
This proved in retrospect to be a gigantic miscalculation. "Had
Blackmun's draft opinion been adopted, it would have left states free
to prohibit abortions for nonmedical reasons," Savage concludes.
"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."
This left Blackmun free to spend the summer rummaging through the Mayo
Clinic library in Rochester, Minnesota. He came back to Washington,
D.C. with a draft long on medical history (much of which he misread)
but short on determining when abortion would be permitted or prohibited.
The third turning point came in October 1972 when the justices convened
and discovered that "Powell, the soft-spoken Virginian who was new to
the court, firmly supported a woman's right to abortion," Savage
writes. "He urged Blackmun to say it directly rather than attack the
laws as vague."
With six votes to strike down the laws, Blackmun was either emboldened
or trapped (depending upon your reading; Savage prefers the latter) to
write a "broader opinion."
His November 21, 1972, draft 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." The fourth
turning point came next.
According to Savage, "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."
Blackmun revised his opinion (get this) over the Christmas holidays.
"In his final draft, states were told they could not restrict abortions
through the second trimester," explains Savage. However, what turned
Roe into abortion on demand was its companion case, Doe v. Bolton, the
fifth and final turning point.
Blackmun wrote that in deciding whether an abortion is necessary,
doctors may consider "all factors - physical, emotional, psychological,
familial and the woman's age - relevant to the well-being of the
patient." To his credit, Savage candidly explains what that meant:
"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." Ironically--and tellingly--Blackmun was dissuaded by his
colleagues from issuing a press release stressing that the decisions
would not mean "abortion on demand."
This insistence that the fall-out from Roe and Doe would be minimal is
a testimony to how far removed from reality not only Blackmun was but
the entire Court.
Tomorrow, we'll talk about a couple of related items, including a
Washington Post story from Sunday that yet again misstates and
misrepresents where the public stands on abortion.
Talk to you Wednesday.
Please
send all comments
to Dave Andrusko at
dandrusko@nrlc.org. |
