Editor's note. The following is excerpted from the prepaired
remarks of Douglas W. Kmiec, professor of constitutional law, University
of Notre Dame and Straus Distinguished Visiting Professor, Pepperdine University,
to a House Judiciary Committee, Subcommittee on the Constitution hearing
that took place April 22, 1996.
Despite the Supreme Court's putative "reaffirmation" of part of
Roe in Planned Parenthood v. Casey, these opinions remain
highly contentious because the constitutional premises upon which they rest
are so wholly erroneous as to be non-existent in law. The writer Santyana
enjoins us to learn from history. Recently, the lessons to be learned from
the history of the abortion cases have come into sharper focus because of
the donation of the late Justice Thurgood Marshall's papers to the Library
of Congress. I have reviewed some of these internal Supreme Court documents,
including draft opinions and correspondence in the 1971-72 period when Roe
was being decided.
Do these internal Court documents reveal the hidden source of abortion's
constitutional and legal legitimacy? Hardly.
None of the justices claim there is a specific textual guarantee of abortion
to be found anywhere in the constitutional document. Nor does the abortion
claim find legitimacy within the background principles of common law out
of which the American Constitution emerged. As Bracton records, and the
draft opinions within the internal Marshall papers indicate the justices
knew, abortion has little common law support, and was clearly thought by
some to be homicide [II Bracton, On the Laws and Customs of England
341 (Thorne ed. 1968), a citation to which can be found in Justice Blackmun's
fourth circulated draft in December 1972]. Because of the more rudimentary
nature of science in the 18th and 19th centuries, the common law drew a
distinction between abortions before and after quickening [16 to 18 weeks],
but under English codification in 1803 both were criminal only in different
degrees. When medical science advanced, the quickening distinction receded,
and penalties for all abortions increased. In 1868, when the 14th Amendment
was adopted, statutory prohibitions or restrictions on abortion were commonplace.
Twenty-eight states of the then 37 and 8 territories banned or limited abortion,
[J. Mohr, Abortion in America (1978)].
The Court's drafts also reveal that the decision was not being guided by
ancient precepts of medical ethics. In this respect, the Hippocratic Oath,
dating back three to four hundred years before Christ, had doctors pledging
that they "will give no deadly medicine to anyone if asked, nor suggest
any such counsel; and in like manner...not give to a woman a pessary to
produce abortion." [The fourth circulated draft of Justice Blackmun's
opinion in Roe cites the Hippocratic Oath, but cavalierly dismisses it on
the basis of academic writing that found it to be held as true only within
Pythagorean Greek culture. Why the Pythago-reans should be so ill-treated,
or deemed uninfluential, is not explained. Indeed, the Oath, which coincides
with prevalent Christian belief since the end of antiquity, became the "nucleus"
of medical ethics.]
But neither text, nor the common law, nor medical ethics as embodied in
the Hippocratic Oath was to steer the Supreme Court in its discovery of
a non-textual abortion right. What did guide the Court? I regret to say,
little more than pragmatic, expedient politics; an exercise in judicial
will, not judgment.
When Roe [and its companion case, Doe v. Bolton] were first
argued in late 1971, there were only seven members of the Court. Justices
Harlan and Black had both recently retired, and would shortly thereafter
die. While many of us associate the abortion right with Roe's author,
Justice Harry Blackmun, mid-December 1971 correspondence actually identifies
William O. Douglas to be the strongest advocate for abortion as an extension
of his earlier opinion in Griswold v. Connecticut, 381 U.S. 479 (1965),
invalidating a Connecti-cut law limiting the use of artificial contraception
[letter from William O. Douglas to Chief Justice Warren Burger, dated December
18, 1971]. Following oral argument, the justices discuss cases and take
a straw vote. The senior justice in the majority [or the chief justice,
if he is in the majority] then usually assigns the opinion writing. Chief
Justice Burger reports that the discussion following the first [Roe]
argument is so confused, that there are "literally not enough columns
to mark up an accurate reflection of the voting" [letter from Warren
Burger to William O. Douglas, dated December 20, 1971]. Out of experience,
perhaps, Burger assigns the draft writing to Blackmun, his fellow Minnesotan.
This infuriates Douglas, since Blackmun was perceived by Douglas as then
favoring state abortion restriction. [Blackmun had been appointed to the
Court by President Nixon about a year earlier.] By mid-January 1972, Blackmun
had looked at the cases and finds the issue so unclear that he urges the
chief justice to ask for re-argument in both Roe and Doe [letter
from Harry Blackmun to Warren Burger, dated January 18, 1972].
Douglas steadfastly resists reargument. Matters drag on nonetheless and
by mid-May 1972, Justice Blackmun tries to rid the Court of the issue on
procedural grounds - - namely, that the Texas statute was too vague to be
enforced. He writes, "I think that [vagueness] would be all that is
necessary for disposition of the case, and that we need not get into the
more complex Ninth Amendment issue" [memorandum to conference from
Harry Blackmun, dated May 18, 1972]. This does not suit Justice Douglas,
who argues that there are at least four votes [enough for a majority on
an understaffed Court] that "an abortion [may] be performed by a licensed
physician within a limited time after conception" [letter from William
O. Douglas to Harry Blackmun, dated May 19, 1972]. Douglas must have talked
with Justice Brennan, because at about the same time Brennan by letter gives
his support for the abortion proposition in almost identical language; namely,
that "an abortion be performed by a licensed physician within some
limited time after conception" [letter from William Brennan to Harry
Blackmun, dated May 18, 1972].
Several things are striking about this internal correspondence beyond, of
course, Justice Blackmun's change of posture from assigned draftsman to
abortion advocate and the overall bewilderment of the Court after the case
was first argued. First, there is considerable internal pressure to get
a decision, perhaps before new members of the Court might change the outcome.
[Nixon appointees Lewis Powell and William Rehnquist replaced Black and
Harlan; as it later turned out, Powell and Rehnquist split over the issue.]
Douglas, in particular, seems especially agitated to push the opinions out,
writing, "I feel very strongly that [Roe and Doe] should
not be reargued.... I hope the 5 can agree to get the cases down this Term,
so that we can spend our energies next Term on other matters" [letter
from William O. Douglas to Harry Blackmun, dated May 31, 1972]. Second,
the internal correspondence is almost completely devoid of what one could
call constitutional argument. Instead of a careful examination of the common
law or argumentation premised upon the textual provisions of the constitutional
document, there is merely vote counting and assertion. Third, taking Justices
Douglas and Brennan at their word, the initial four-person majority envisioned
only a very narrowly worded abortion privilege - - one that would be confined
to a limited time after conception. The last point is particularly
striking in light of President Clinton's insupportable claim and recent
veto that the abortion license formulated by the Court extends even to the
most graphically hideous procedure and to the moment of birth.
By late May, Justice Blackmun had fully joined the Douglas-Brennan circle
[which also included Potter Stewart and Thurgood Marshall] in favor of creating
an abortion right [memorandum to the conference, dated May 31, 1972]. Justice
Blackmun's memoranda reflect highly legislative considerations almost exclusively.
For example, he proposes to invalidate most of the Georgia statute, except
maybe those requiring an abortion to occur in a licensed and accredited
hospital [memorandum to the conference from Harry Blackmun, dated May 25,
1972]. Demonstrating that none of these specific invalidations were rooted
in constitutional text or history, however, Justice Blackmun holds open
the possibility, like a good legislative lobbyist, that maybe "some
of you may wish to take that step, too [that is, allowing abortions outside
hospitals]." [Id., the Court did take that step.] The particulars of
the Court's legislative considerations still tangled, Justice Blackmun,
at month's end, urges that Roe and Doe be reargued [memorandum to conference
from Harry Blackmun, dated May 31, 1972]....
...Except for the exchange of personal opinion or medical speculation, there
is no evidence of constitutional study or consideration. Only Chief Justice
Burger attempts to anchor the discussion in the Constitution, expressing
the patent federalism objection that "the states have... as much concern
in this area as in any within their province; federal power has only that
which can be traced to a specific provision of the Constitution" [memorandum
to the conference from Warren Burger, dated May 31, 1972]. There is little
other argument or discussion in the internal correspondence touching upon
the substance of constitutional law.
The cases were reargued in October 1972. In November, Harry Blackmun writes
the final drafts of opinions that today we know rather infamously as Roe
v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179
(1973). Again, no real discussion of law occurs in the internal deliberations;
instead, there is the startling admission from Justice Blackmun in the presentation
of his near final draft that "you will observe that I have concluded
that the end of the first trimester is critical. This is arbitrary,
but perhaps any other selected point, such as quickening or viability, is
equally arbitrary" [memorandum to conference from Harry Blackmun, dated
November 21, 1972; emphasis added].
So, there you have it. A confession by the principal author of the most
infamous decision in this century, and perhaps after Dred Scott,
ever, revealing that arbitrary choice - - not discernment of the law of
the land - - accounts for the result in Roe. Law, legal history,
constitutional allocations of power, all ignored. The abortion right derives
not from background principles of common law; not in the first principles
of our constitutional republic; not as a result of careful parsing of constitutional
text. The application of lethal force to the innocent unborn can be found
neither in the records of the drafting of the 14th Amendment, nor the accounts
of that Amendment's ratification. The respect due the structural reservation
of health, safety and moral questions to the states under the 10th Amendment
was forsaken as well.
It is upon this lawless foundation that the Court has authorized the "arbitrary"
extermination of roughly 1.5 million unborn children each year, ever since.
Indeed, the arbitrariness of the lifeline pulled from the grasping hands
of the innocents in Roe is even more manifest in last-minute tinkering
with the opinion. Between late November and the end of the year, Blackmun
observes how he's thinking about moving what he called previously the "critical"
line from the end of the first trimester to viability. He admits that he
chose the end of the first trimester largely for marketing reasons, writing,
"I selected the earlier point because I felt that it would be more
easily accepted (by us as well as others)..." [memorandum to the conference
from Harry Blackmun, dated December 11, 1972]. He is hesitant, however,
if moving the line would cost him votes on the merits ["I would be
willing to recast the opinions at the later date (viability instead of the
end of the first trimester), but I do not wish to do so if it would alientate
any Justice who has expressed to me, either by writing or orally, that he
is in general agreement, on the merits, with the circulated memorandum"
(Id.)].
The viability line thus has no constitutional significance. It is
Justice Blackmun's arbitrary choice. It is also a choice that reveals no
consideration of the unborn child's interest, and virtually no acknowledgment
of state legislative authority. Rather, the viability line ultimately gets
chosen by the Court to simply maximize the opportunity for young women especially
to undergo abortions. Justice Blackmun writes, "many pregnant women,
particularly younger girls, who may refuse to face the fact of pregnancy
and who, for one reason or another, do not get around to medical consultation
until the end of the first trimester is upon them or, indeed, has passed"
[memorandum to the conference from Harry Blackmun, dated December 11, 1972].
...
...A few of the justices were squeamish. Justice Potter Stewart
wonders "about the desirability of the dicta being quite so inflexibly
`legislative,' " suggesting that he might extend to the states more
latitude to make policy judgments [letter from Potter Stewart to Harry Blackmun,
dated December 14, 1972]. The flexibility was not to be, though Justice
Blackmun in a small concession urges that the "cases...come down no
later than the week of January 15 to tie in with the convening of most state
legislatures" [memorandum to conference from Harry Blackmun, dated
December 15, 1972]. A professional courtesy, perhaps, to fellow legislators.
Of course, a Court that engages in practices well beyond its Article III
function to decide "cases or controversies" under the principles
and usages of established law, needs its own press office to put, as political
figures say today, the proper "spin" on matters. Writing that
he "anticipate[s] the headlines that will be produced over the country
when the abortion decisions are announced," Justice Blackmun prepares
an eight-page press release personally [memorandum to the conference, with
press attachment, from Harry Blackmun dated January 16, 1973].
Press release in place, the rest, as they say, is history - - a sad and
tragic history that denies the sanctity of human life, not because the Constitution
requires it, but because seven men decided to legislate from the bench -
- and by their own admission, arbitrarily at that.