David J Garrow. Washington and Lee Law Review. Volume 71, Issue 2, Spring 2014.
Let me begin with one sentence that Justice Harry A. Blackmun uttered in 1987: “Roe against Wade was not such a revolutionary opinion at the time” that it was handed down in January 1973, and in that statement Justice Blackmun was indisputably correct.
In the beginning, of course, there was Griswold v. Connecticut, in 1965, and it is always essential to remind people that Griswold was not a “test case,” as Judge Robert H. Bork labeled it during his 1987 testimony to the Judiciary Committee of the United States Senate following his nomination to the High Court, but that Griswold was in fact, as any competent student of constitutional law should know, an appeal of two trial court criminal convictions, of Estelle Griswold, the executive director of Connecticut Planned Parenthood, and Dr. C. Lee Buxton, chairman of the Department of Obstetrics and Gynecology at Yale University’s Medical School and a volunteer physician for Planned Parenthood.
Griswold and Buxton had been convicted of aiding and abetting married female patients of Planned Parenthood’s New Haven clinic in their use of contraceptive devices for the purpose of preventing conception. Their bench trial convictions had been affirmed first by a unanimous intermediate state appellate court and then by a unanimous Connecticut Supreme Court. Thus what confronted the Justices of the U.S. Supreme Court in December 1964 when they unanimously agreed to hear the Griswold appeal was a constitutional challenge to a longstanding state statute criminalizing the use of contraceptive articles, a statute which twice before had been brought before the High Court without resulting in a decision on the merits.
Griswold was before the High Court in the October Term of 1964 not just because Tileston v. Ullman had been ineptly litigated by “white shoe” counsel whose imprecise complaint doomed their case, or because the Warren Court itself, and especially Justice William J. Brennan Jr., just four years earlier had refused to find any true case and controversy in Poe v. Ullman, but far more fundamentally because for over forty years Roman Catholic political influence in Connecticut had blocked any legislative repeal of the law criminalizing any use of contraception, which part-time legislator and circus impresario P.T. Barnum had brought to enactment in 1879. Ironically, Griswold created constitutional protection for reproductive choices only because Roman Catholic political actors had prevented any legislative resolution of a controversy that had appeared before Connecticut’s state legislature every two years, without exception, from 1923 through 1963.
Once Griswold bestowed constitutional protection upon a right to privacy regarding contraceptive use, the doctrinal door was thereby opened for young academics and litigators who would take that initially modest doctrinal innovation and expand it beyond application to simply contraceptive choice. The most important and most remarkable aspect of the story of the creation of the very idea of a right to abortion is how something that almost literally had never, prior to 1963, ever been publicly suggested by anyone anywhere in America, then, after Griswold, developed and spread so rapidly that by late 1969 and early 1970 multiple such federal constitutional claims were being filed independently of each other in district courts across the country.
Across the years 1967, 1968, and 1969, a nationwide set of young lawyers became convinced that Griswold’s constitutional privacy analysis, whether best captured by Justice William O. Douglas’s penumbras and emanations majority opinion, Justice Arthur Goldberg’s invocation of the long-ignored Ninth Amendment, or Justice John M. Harlan’s unapologetic embrace of Fourteenth Amendment substantive due process liberty, should protect a woman’s desire to abort a pregnancy as well as for marital contraception. As of 1966 and 1967, almost the entire population of activists and legislators who were working to liberalize the criminal statutes that disallowed almost any legal abortion in every single state had as their state-by-state goals the passage of reform legislation that would allow some individual women with specific medical reasons for wanting an abortion to apply and win approval from some hospital-based committee of doctors.
This push for what was called “abortion law reform” registered its first surprising successes in Colorado, North Carolina, and then California in the spring of 1967, but within hardly twelve months’ time the realization began to dawn on almost all of those reform proponents that the number of pregnant women wanting abortions who actually qualified for them under these new statutes was exceedingly modest, and that the vast majority of women hoping to end pregnancies did not have particular therapeutic or health reasons for doing so. Thus, with a speed that in retrospect is incredibly striking, virtually the entire community of therapeutic reform advocates shifted to support of abortion law repeal, that is the legalization of abortion irrespective of the reasons why a pregnant woman wanted to obtain one. Rather than viewing abortion from a fundamentally medical perspective, where women had to invoke some health rationale and then win multiple doctors’ blessings in order to get an abortion, now the proponents of change were acknowledging that what was fundamentally at issue was women’s claim that the abortion decision should be their own, and not the product of a medical authorization process.
This evolution brought the proponents of state-by-state legislative change to the same stance and worldview that a few young lawyers had begun striving to articulate in constitutional rights terms from 1967-68 onward. The most important, original, and influential of these lawyers was Roy Lucas, who graduated from NYU Law School in 1967 and spent the ensuing academic year teaching at the University of Alabama Law School before returning to New York in the summer of 1968, just as the North Carolina Law Review was publishing his seminal article detailing how state anti-abortion laws were highly susceptible to constitutional attack in federal court lawsuits based upon Griswolds precedent.
Lucas and other strategists spent the latter half of 1968 and the first nine months of 1969 slowly preparing to file the very first such test case, and on the last day of September Hall v. Lefkowitz–the named defendant being New York State’s Attorney General–was filed in the U.S. District Court for the Southern District of New York. Dr. Robert E. Hall and the other three named plaintiffs were all extremely prominent obstetrician-gynecologists with medical school professorships, and throughout the loosely coordinated network of attorneys interested in constitutional challenges to state abortion statutes, the belief was that there were no possible plaintiffs who could more impress federal judges than high-status doctors. Lucas intended for similar if not identical federal cases to be filed in other states, including Texas, where his intended lead plaintiff was prominent Fort Worth obstetrician-gynecologist, Dr. Hugh W. Savage, but come the spring of 1970 Lucas’s carefully laid plans were upended on multiple fronts by unexpected events.
In early March, a young lawyer in Dallas, Linda Coffee, who had been in repeated contact with abortion repeal supporters both there and in Austin, but not with Lucas or any other out-of- state attorneys, filed a pseudonymous abortion rights case in federal court there against the local district attorney: Roe v. Wade Far more importantly, certainly in the eyes of contemporary observers, on April 9 the New York State Assembly, with no votes to spare, passed a bill legalizing abortion until the twenty-fourth week of pregnancy. The far-off state of Hawaii had surprisingly passed a repeal bill, but including a residency requirement, weeks earlier, yet the New York law, scheduled to take effect on July 1, included no such restriction, thus soon making a legal abortion available to any woman with the wherewithal to travel to New York. But a major casualty of that landmark new statute was Lucas’s carefully designed initial test case, which was mooted by the legislature’s action, and two major byproducts ensued once the New York statute did take effect in mid-summer. One, among proponents, was a major, economy-minded push to launch specialized clinics where abortions could be performed at vastly lower cost than what hospitals would charge; the second, among opponents, was the belated realization that far more energetic political activity would be necessary on behalf of the right-to-life cause if the emerging trend toward abortion law repeal was to be staunched or pushed back. New York’s enactment of repeal was far and away the single most important pre-1973 abortion-related event because it was New York’s legalization that spurred the mobilization of anti-abortion activism well prior to January of 1973. Come November 1970, Washington State by popular vote became the fourth state to legalize abortion, but from that point in time onward, across all of calendar 1971 and all of calendar 1972, antiabortion forces, rather than pro-repeal forces, were consistently in the political driver’s seat as the blowback against New York’s legalization generated a nationwide anti-abortion political upsurge. Once anyone immerses themselves in the contemporary political record of that 1971-1972 time period, one inescapably sees the political landscape turning very much against abortion legalization, notwithstanding how Roy Lucas and several dozen other generally young attorneys, sometimes coordinated and sometimes not, were filing more than two dozen state-by-state constitutional challenges to existing anti-abortion statutes.
The first abortion case to come before the U.S. Supreme Court was United States v. Vuitch, in which the justices heard two full hours of argument in January 1971. Vuitch had seen a prominent federal district judge dismiss a criminal prosecution of a doctor who performed abortions under the District of Columbia’s unusually liberal anti-abortion law, which authorized abortions necessary to preserve a woman’s health, on the grounds that that “health” standard was unconstitutionally vague. After extended internal discussion, the Supreme Court reversed the lower court’s vagueness ruling, but in so doing declared that the statute’s promulgation of a “health” exception was not unconstitutionally vague so long as “health” was correctly understood to cover a pregnant woman’s “psychological as well as physical well-being.” Repeal proponents quickly appreciated that that holding was actually a significant victory, rather than a defeat, and several weeks after handing down Vuitch the Supreme Court agreed to hear two of several other abortion cases in which it had been deferring any action until Vuitch was decided.
One case in which the High Court already had declined to intervene was Minnesota’s highly publicized criminal prosecution of a well-regarded St. Paul physician, Dr. Jane Hodgson, who in April 1970, with the support of other prominent local M.D.’s, had initiated a federal court suit seeking both declaratory and injunctive relief so that she could perform a hospital abortion on a young married patient, Nancy K. Widmyer, whose nine-week-old fetus had indisputably been exposed to rubella virus. The federal district judge before whom the matter came refused to issue any immediate order, and nine days later Dr. Hodgson performed the abortion. Three weeks later Hodgson was criminally indicted by the local district attorney, and both before, and again after those charges were filed, the federal court insisted that no “case or controversy” existed and refused to intervene.
Dr. Hodgson went to trial in November 1970, after both the Minnesota Supreme Court and the U.S. Supreme Court declined to halt her prosecution. Hodgson had retained Roy Lucas to aid in her defense, but with both the attorney and the defendant hoping for a conviction rather than an acquittal, so that her case could proceed forward with the best possible set of facts for challenging anti-abortion laws, Dr. Hodgson’s non-jury trial featured Mrs. Widmyer and a Mayo Clinic physician as the primary defense witnesses. The trial judge indeed found Hodgson guilty, and while briefing in her appeal to the Minnesota Supreme Court would not be complete until the summer of 1971, at least the two Minnesota natives on the U.S. Supreme Court, Chief Justice Warren E. Burger and junior Associate Justice Harry A. Blackmun, who once had worked at the Mayo Clinic and was well-acquainted with Hodgson’s top medical supporter, Dr. Joseph H. Pratt, both indicated during the Court’s consideration of Vuitch that they knew very well that Hodgson’s criminal appeal was headed their way.
The two cases that the High Court in early May 1971 did, soon after Vuitch, agree to hear, Roe v. Wade from Texas and Doe v. Bolton from Georgia, had both been filed in early 1970 and had then come before special three-judge district courts from which direct appeal to the Supreme Court was possible following the panels’ denials of injunctive relief. Both panels had nonetheless ruled against the existing Texas and Georgia abortion statutes, and with a plethora of other abortion cases already docketed before the High Court-including ones from Louisiana, Missouri, and Illinois–and others, like Jane Hodgson’s, known to be looming, it was unsurprising that five Justices-Douglas, Harlan, Brennan, White, and Marshall voted to accept both Roe and Doe for argument on the merits come October Term 1971.
It is often asserted, most notably by someone who is now herself a Supreme Court Justice, that the Justices should-and could-have avoided or at least postponed any consideration of Roe and Doe’s constitutional merits in 1971-72. That assertion is often interwoven with the claim that such a delay would have allowed proliberalization forces to continue making progress politically state-by-state, but, following Washington State’s adoption of its repeal law thanks to a popular referendum vote in November 1970, in no state whatsoever were any additional repeal measures enacted during 1971 or 1972 and only Florida managed to approve even a reform bill. What’s more, in New York State, come May 1972, the state legislature voted to repeal the 1970 legalization statute, and only Governor Nelson Rockefeller’s veto kept the 1970 law in place. Later that year, efforts to duplicate Washington State’s 1970 popular vote success went down to overwhelming defeats in both Michigan and North Dakota.
Four months after the Court announced that it would hear Roe and Doe, a six-day period in September 1971 witnessed the back-to-back resignations of aging Justices Hugo L. Black and John M. Harlan, suddenly reducing the Court to a seven rather than nine-member bench. By early December neither of their successors, Lewis F. Powell and William H. Rehnquist, had yet been seated, and without dissent the remaining justices denied Texas’s request to postpone oral argument until a full Court was available and proceeded to hear argument in Roe and Doe on December 7.
The Justices’ private, post-argument conference discussion of the two cases revealed that a clear majority favored affirmance of the lower court’s ruling in Roe, but no consensus whatsoever about how to resolve Doe, and Chief Justice Burger assigned responsibility for preparing opinions in both cases to the Court’s junior Justice, Harry A. Blackmun. Notwithstanding that assignment, both Justices William O. Douglas and William J. Brennan privately prepared, and shared with each other, initial drafts of potential opinions in Doe, and both Justices’ writings, just like the seven Justices’ conference discussion, left no doubt whatsoever that a decision on the merits regarding the Griswold based challenge to the constitutionality of anti-abortion statutes was going to occur in at least one of the two cases. Once Justices Powell and Rehnquist were sworn in and seated in early 1972, Blackmun himself nominated both Roe and Doe as candidates for possible reargument before a full, nine-member Court, though any decision on that question would await Blackmun’s own drafting efforts.
Only in mid-May 1972 did Blackmun finally circulate an unusually brief, seventeen page draft of an opinion in Roe v. Wade, and, to the disappointment and consternation of at least four of his colleagues, it proposed that the Court hold Texas’s anti-abortion law unconstitutional solely on the grounds that its inclusion of only a maternal “life” exception was void for vagueness. Justices Brennan and Douglas both voiced direct complaints, and several days later Blackmun circulated a significantly more substantive draft opinion for Doe v. Bolton However, as the Justices proceeded to exchange views about that draft, Justice Byron R. White circulated a brief, three-page draft of a dissent from Blackmun’s proposed Roe opinion, cogently highlighting how any holding that Texas’s statute was unconstitutionally vague would necessarily override the Court’s thirteen-month-old holding in Vuitch, for “[i]f a standard which refers to the ‘health’ of the mother … is not impermissibly vague, a statutory standard which focuses only on ‘saving the life’ of the mother would appear to be a fortiori acceptable.”
White’s action pushed Blackmun to return to the stance he had suggested four months earlier, namely that both Roe and Doe should be held over for reargument before all nine justices early in the following term. Such a move, Blackmun said, would also allow him, over the summer, to devote more study and work to the two opinions, and despite vocal objections from Justices Douglas, Brennan, and Stewart, all of whom worried that Blackmun might with time abandon their tentative majority’s stance on the constitutional merits, both Justices Powell and Rehnquist weighed in favoring reargument, and in late June the Court so ordered, with only Douglas in public dissent.
By late in the summer of 1972, Blackmun’s two departing law clerks who had had responsibility for the Roe and Doe opinions, John T. Rich and George Frampton, were still strongly inclined to leave Roe as a void for vagueness holding and make Doe the more constitutionally significant decision. Frampton told Blackmun the opinions should provide states with “a comprehensive prescription” for how to revise their abortion statutes, and he explained how in Doe
I have written in, essentially, a limitation of the [abortion] right depending on the time during pregnancy when the abortion is proposed to be performed …. I have chosen the point of [fetal] viability for this ‘turning point’ (when state interests become compelling) for several reasons: a) it seems to be the line of most significance to the medical profession … ; b) it has considerable analytic basis in terms of the state interest as I have articulated it [regarding the fetus].
Frampton also explained that “I have included a section designed to show in greater detail that neither the law nor any other discipline has really arrived at a consensus about the beginning of life.” But Frampton apologized that with regard to constitutional privacy analysis, “I would have liked to do more here, but I really didn’t have time at the end” and that the deficiency was regrettable: “Since the opinion does use this right throughout, and since it is a new application of it, I think considerable explanation is required in addition to what the circulated draft contained-which was a little more than one sentence plus a string cite in [the] text” that dated from three months earlier.
In the weeks immediately preceding Roe and Doe’s scheduled rearguments on October 11, 1972, Justice Lewis F. Powell Jr. gave Blackmun’s earlier drafts his first careful reading. Powell had no doubt that Texas’s anti-abortion law was “unduly restrictive of individual rights,” as he jotted in the margin of Blackmun’s Roe draft, but he also endorsed Byron White’s critique, noting “I agree that the Texas statute is not unconst. vague.” At bottom, Powell wrote to himself, “Why not consolidate Texas + Ga. cases + rely on Ga. type analysis” to void both states’ statutes on constitutional privacy grounds.
Several days later, Powell mentioned to his law clerk assigned to assist on Roe and Doe, Larry Hammond, that they should pay heed to a majority opinion that a three-judge court considering a challenge to Connecticut’s abortion statute had issued just two weeks earlier, on September 20, 1972. In that case, Abele v. Markte, District Judge Jon O. Newman, writing for himself and Second Circuit Judge J. Edward Lumbard, had observed that in the context of an unwanted pregnancy, “the right to an abortion is of even greater concern to the woman than the right to use a contraceptive protected in Griswold’ and thus voided the Connecticut law. Newman went on to say that “a fetus is not a person within the meaning of the Fourteenth Amendment” and that “its capacity to become such a person does not mean that during gestation it is such a person.”
Hammond prepared a bench memo for Powell, reviewing Blackmun’s earlier drafts, revisiting Griswold, and summarizing Judge Newman’s analysis. Given Griswold, “it would not be difficult for this Ct. to find a fundamental right of a woman to control the decision whether to go through the experience of pregnancy and assume the responsibilities that occur thereafter.” Hammond recommended to Powell that “you might reason as Judge Newman does that the state interest becomes more dominant when the fetus is capable of independent existence (or becomes ‘viable’).” Highlighting how Texas, like Connecticut, was defending its statute by contending that fetuses were constitutional “persons,” Hammond noted that “the crux of Judge Newman’s analysis is that the state may not bar abortional freedom altogether on the basis of a proposition that is subject to such a great public debate and affects individuals so personally.” Overall, Hammond observed, “I do believe that a well-reasoned opinion can be written reaching this result without placing the Ct. in the position of deciding as a super-legislature whether it will permit abortions at any specific point in time.”
During the two rearguments, Justice Potter Stewart readily interjected Newman’s name when one of the counsel, after mentioning the Connecticut decision, paused while trying to name its author. When the justices met in conference two days later, Stewart again referred by name to Newman before Blackmun explained that he still would like to make Doe the lead opinion on the Fourteenth Amendment privacy right issue and strike Texas’s statute on vagueness grounds while nonetheless leaving Vuitch undisturbed. But Lewis Powell, after indicating a belief that health factors, rather than economic considerations, ought to undergird abortion decisions, recommended, just as he had concluded when he first read Blackmun’s drafts, that the Texas statute too should be struck down on the basic constitutional question and that Roe should be the lead opinion. Powell’s statement led Blackmun to say that he would be “willing to bypass vagueness” in Roe and decide both cases on the same basic constitutional grounds. As the conference ended, it was clear to all the Justices that there were certainly six votes, and probably seven, depending upon Warren Burger, in support of Blackmun and Powell’s stance, with only Byron White and William Rehnquist in disagreement.
Following that conference, five weeks passed before Harry Blackmun circulated heavily revised opinions in both Roe and Doe, and altered one very significant particular from where George Frampton’s handiwork had left things three months earlier. In these revised drafts, as Blackmun told his colleagues in a cover memo, “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.” In his Roe draft, Blackmun stated that during the first trimester of pregnancy, a state “must do no more than to leave the abortion decision to the best medical judgment of the pregnant woman’s attending physician.” However, “[f]or the stage subsequent to the first trimester, the State may, if it chooses, determine a point beyond which it restricts legal abortions to stated reasonable therapeutic categories that are articulated with sufficient clarity so that a physician is able to predict what conditions fall within the stated classifications.”
In the immediate wake of those two circulations, several extremely important developments rapidly took place. First off, the responses from Blackmun’s colleagues were positive and praiseful. William O. Douglas, previously the Justice most worried about Blackmun’s approach to the cases, complimented him on “an excellent job,” and Potter Stewart, who too had been concerned, applauded “an admirably thorough job.” Perhaps most notably of all, even though Byron White and William Rehnquist were in disagreement with Blackmun, their comments on the opinions were gently, tentatively, and respectfully-rather than forcefully or angrily-expressed. Almost immediately after reading the drafts, Rehnquist wrote privately to Blackman to say that
although I am still in significant disagreement with parts of them, I have to take my hat off to you for marshaling as well as I think could be done the arguments on your side. I think I will probably still file a dissent, although more limited than I had contemplated after the conference discussion.
White admitted that he had been “struggling with these cases” and would “probably end up concurring in part and dissenting in part,” which in turn led Rehnquist to add that “I am about where Byron said he was” and would also “probably concur in part and dissent in part.” In short, anyone anticipating, particularly in light of White’s and Rehnquist’s subsequent writings, both in Roe and Doe themselves and especially in subsequent abortion cases in later years, that there had been vigorous and vociferous objections within the Supreme Court during late 1972 to Blackmun’s extension of Griswold-style constitutional privacy analysis to the question of abortion would be entirely mistaken.
Indeed, what substantive objections other Justices-and clerks-did voice to Blackmun’s new drafts focused on the fact that in their view Blackmun’s choice of the end of the first trimester of pregnancy did not go far enough towards protecting a woman’s opportunity to obtain an abortion. On November 27, Lewis Powell’s clerk Larry Hammond gave the Justice a six-page memo critiquing Blackmun’s drafts. Hammond was happy that Blackmun “ha[d] embraced the straightforward constitutional view taken by Judge Newman in the Connecticut case,” but was displeased by Blackmun’s focus on the end of the first trimester. “It is unnecessary to the result that we draw the line. If a line ultimately must be drawn, it seems that ‘viability’ provides a better point. This is where Judge Newman would have drawn the line.”
Powell marked up Hammond’s memo, writing “Unnecessary to draw line-but may be desirable,” and noting a bold “yes” next to another Hammond sentence: “Most people would probably agree that the state has a much greater interest in protecting a viable entity than it does at some earlier time.” Powell then sent a private letter to Blackmun, saying that “I am enthusiastic about your abortion opinions. They reflect impressive scholarship and analysis,” but pointedly asking “whether you view your choice of ‘the first trimester’ as essential to your decision.” Powell noted how Blackmun himself had termed that choice “arbitrary,” and then voiced his overarching thought: “I have wondered whether drawing the line at ‘viability’-if we conclude to designate a particular point of time-would not be more defensible in logic and biologically than perhaps any other single time.” Powell then proceeded to quote some of Newman’s Connecticut opinion language to Blackmun, observing that “I rather agree with the view that the interest of the state is clearly identifiable, in a manner which would be generally understood, when the fetus becomes viable. At any point in time prior thereto, it is more difficult to justify a cutoff date.”
In Blackmun’s chambers, his new clerk handling Roe and Doe, Randall Bezanson, offered Blackmun some detailed thoughts about Powell’s comments:
Let’s assume that prior to the end of the first trimester no limitations could be placed on abortion, as your opinion now provides. And assume that after viability the state’s interest becomes sufficiently compelling to prevent abortions except in limited circumstances-preserving the life of the mother, or her health as narrowly defined in a statute. I am still of the opinion that during the ‘interim’ period between the end of the first trimester and viability (about six months), the state might impose some greater restrictions relating to medical dangers posed by the operation, e.g., the operation would have to be performed in a hospital, as opposed to a clinic close to a hospital, and the like. One of the positive attributes of your approach, as I see it, is that it leaves the state free to place increasing restrictions on abortions over the period of gestation if those restrictions are narrowly tailored to state interests. Justice Powell’s suggestion seems to view the relevant state interests too narrowly, and disregards the state’s interest in assuring that the medical procedures employed will be safe. Your opinion, as I view it, rests on two state interest[s], which become compelling in varying degrees over time, and not simultaneously: the state’s interest in preserving the life of the fetus (here the most logical cutoff, as Justice Powell suggests, is viability), and the state’s interests in assuring that the abortion procedure is safe and adequately protects the health of the patient (it is this interest to which I think Justice Powell gives too little weight). The fetus is pretty large at 4 or 5 or 6 months, although it may not be ‘viable.’ I would imagine, and your opinion suggests to me, that the medical risks which attend abortion of a fetus increase as the size of the fetus increases. Thus the state’s interests may increase vis-à-vis this factor before ‘viability.’
While the first trimester is, as you admit, an arbitrary cutoff, I don’t think that it is all that arbitrary, and I would not want to prejudge a state’s interests during the ‘interim’ period between the end of the first trimester and viability at this time. I would stand by your original position, subject to minor change, and leave the question of what legitimate interests a state might have of requiring greater protection through higher medical standards to another case.
On December 4, 1972, Blackmun replied to Powell in a letter that directly echoed Bezanson’s views of the choices they faced:
I have no particular commitment to the point marking the end of the first trimester as contrasted with some other point, such as quickening or viability. I selected the earliest of the three because medical statistics and the statistical writings seemed to focus on it and to draw their contrasts between the first three months and the remainder of the pregnancy. In addition, I thought it might be easier for some of the justices than a designated later point. I could go along with viability if it could command a court. By that time the state’s interest has grown large indeed. I suspect that my preference, however, is to stay with the end of the first trimester for the following reasons: (1) It is more likely to command a court. (2) A state is still free to make its decisions on the liberal side and fix a later point in the abortion statutes it enacts. (3) I may be wrong, but I have the impression that many physicians are concerned about facilities and, for example, the need of hospitalization, after the first trimester. I would like to leave the states free to draw their own medical conclusions with respect to the period after three months and until viability. The states’ judgments of the health needs of the mother, I feel, ought, on balance, to be honored.
One week later, though, on December 11, Blackmun, without citing Powell by name, sent all of the justices a two page memo which in retrospect marks the fundamental turning point in making the holdings in Roe v. Wade and Doe v. Bolton what they in the end came to be:
One of the members of the Conference has asked whether my choice of the end of the first trimester, as the point beyond which a state may appropriately regulate abortion practices, is critical. He asks whether the point of viability might not be a better choice.
The inquiry is a valid one and deserves serious consideration. I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) and because most medical statistics and statistical studies appear to me to be centered there. Viability, however, has its own strong points. It has logical and biological justifications. There is a practical aspect, too, for I am sure that there are 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.
I suspect that few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation. What we are talking about, therefore, is the interval from approximately 12 weeks to about 28 weeks.
One argument for the earlier date is that the state may well be concerned about facilities and such things as the need of hospitalization from and after the first trimester. If the point of viability is selected, a decision of this kind is necessarily left to the attending physician.
I would be willing to recast the opinions at the later date, but I do not wish to do so if it would alienate 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.
I might add that some of the district courts that have been confronted with the abortion issue have spoken in general, but not specific, terms of viability. See, for example, Judge Newman’s observation in the last Abele v. Markle decision.
May I have your reactions to this suggestion?
The first Justice to respond, William O. Douglas, that very day, told Blackmun “I favor the first trimester, rather than viability,” but the following day Thurgood Marshall’s chambers sent to Blackmun a vitally significant letter written by clerk Mark Tushnet, with only a single unimportant alteration in its text made by Marshall himself:
I am inclined to agree that drawing the line at viability accommodates the interests at stake better than drawing it at the end of the first trimester. Given the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion, I fear that the earlier date may not in practice serve the interests of those women, which your opinion does seek to serve.
At the same time, however, I share your concern for recognizing the State’s interest in insuring that abortions be done under safe conditions. If the opinion stated explicitly that, between the end of the first trimester and viability, state regulations directed at health and safety alone were permissible, I believe that those concerns would be adequately met.
It is implicit in your opinion that at some point the State’s interest in preserving the potential life of the unborn child overrides any individual interests of the women. I would be disturbed if that point were set before viability, and I am afraid that the opinion’s present focus on the end of the first trimester would lead states to prohibit abortions completely at any later date.
In short, I believe that, as the opinion now stands, viability is a better accommodation of the interests involved, but that the end of the first trimester would be acceptable if additions along the lines I have suggested here were made.
The following day, William Brennan sent Blackmun a lengthier but very similar letter. Thanking Blackmun for “giving second thoughts to the choice of the end of the first trimester as the point beyond which a state may appropriately regulate abortion practices,” Brennan nonetheless went on to say that “if the ‘cut-off point is to be moved forward somewhat, I am not sure that the point of ‘viability’ is the appropriate point,” since “if we identify the state’s initial interests as the health of the woman and the maintenance of medical standards,” viability “as the point where a state may begin to regulate in consequence of these interests seems to be technically inconsistent” since viability concerned the fetus, not the woman. Fetal viability occurred only “at a point in time after the state has asserted its interest in safeguarding the health of the woman and in maintaining medical standards.” Brennan went on to say that
I have no objection to moving the ‘cut-off point … from the end of the first trimester … to a point more closely approximating the point of viability (20 to 28 weeks), but I think our designation of such a ‘cut-off point should be articulated in such a way as to coincide with the reasons for … creating such a ‘cut-off point.
Warren Burger and Potter Stewart weighed in less pointedly as well, while in Lewis Powell’s chambers Larry Hammond was elated at Blackmun’s memo, telling Powell that Blackmun’s acknowledgment that many young women might not appreciate their predicament early in pregnancy was crucial. Powell bracketed Hammond’s comments and wrote a bold “yes” by them in the margin, and then drafted a letter of his own to Blackmun, writing that “once we take the major step of affirming a woman’s constitutional right, it seems to me that viability is a more logical and defensible time for identifying the point at which the state’s overriding right to protect potential life becomes evident.” Reprising Hammond’s points about young women in denial, Powell added that “if there is a constitutional right to an abortion, there is much to be said for making it effective where and when it may well be needed most,” and he closed by again mentioning how “favorably impressed” he was with Jon Newman’s opinion that “identified viability as the critical time from the viewpoint of the state.”
Powell left his letter unsent, either because he expressed his views to Blackmun in person, and/or because Marshall’s and Brennan’s successive letters had made much the same points, and in Blackmun’s chambers Randall Bezanson concluded that revised opinions should
articulate the two state interests, and the point at which they assume increasing significance. With respect to the state’s interest in preserving the safety of the operation and the conditions surrounding it, regulation might be permissible somewhere between the end of the 1st trimester (if that is the cut-off selected) and ‘viability’ or beyond. But with respect to the state’s interest in preserving fetal life, the opinion might, for example, indicate that only after “viability” does this interest become sufficiently compelling to support regulation in furtherance of this interest.
On December 15, Blackmun himself wrote to all his colleagues, thanking them for “the helpful suggestions” that had been made over the previous four days and saying he would revise his opinions in light of them. “I have in mind associating the end of the first trimester with an emphasis on health, and associating viability with an emphasis on the State’s interest in potential life. The period between the two points would be treated with flexibility.”
Six days later, Blackmun circulated his all-but-final drafts of both Roe and Doe, highlighting in a cover memo how in Roe “I have tried to recognize the dual state interests of protecting the mother’s health and of protecting potential life” and believed this was “a better approach” than his previous drafts. Roe’s all-too- brief constitutional discussion had not been significantly beefed up over the previous four months, but the opinion clearly delineated the two distinct compelling state interests that the Justices’ private exchanges had identified, holding that with regard to maternal health, “the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester.” Secondly, “[w]ith respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” Blackmun observed that “[i]f the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to protect the life or health of the mother,” and in closing he emphasized that Roe’s holding “is consistent with the relative weights of the respective interests involved” and “leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.”
Blackmun’s supportive colleagues quickly signed on, with Potter Stewart remarking that he was “greatly impressed” with the new drafts’ “thoroughness and care” and Lewis Powell commending Blackmun for his “exceptional scholarship.” Thus when Roe v. Wade and Doe v. Bolton emerged to public view a few weeks later on January 22, 1973, the two opinions articulated radically different holdings than would have been the case eight months earlier had Blackmun’s May 1972 drafts been handed down instead. Griswolds doctrinal “privacy” legacy, and the young attorneys who had championed it, were by early 1972 historical “givens,” as was Dr. Jane Hodgson’s impending appeal of her Minnesota criminal conviction, which was a direct echo of how Griswold itself had finally forced the Court to address the constitutionality of a state’s criminalization of the use of contraceptives. But from there forward, the ironies of what had transpired within the Supreme Court of the United States over the course of those eight months abound, often starkly.
Had not Byron White, who in the end dissented far more vociferously than he had ever indicated in conference or in his comments to Blackmun, successfully derailed Blackmun’s initial void for vagueness approach in Roe by pointing out the fundamental contradiction between that view of “life” and what the Court in Vuitch had held regarding “health,” Roe v. Wade at age forty would be only somewhat more widely remembered than Vuitch.
Three months later, in August 1972, just as he was leaving his clerkship with Harry Blackmun, George Frampton full well realized, and expressly pointed out, that due to his lack of time the two draft opinions were badly deficient in their explication of their constitutional “right to privacy” analysis and that “considerable explanation is required” beyond what little the drafts then contained, but notwithstanding all of the very detailed exchanges amongst justices and clerks over the ensuing four months about what the actual holdings should be, that deficient constitutional explanation was never again addressed, debated, or remedied.
In sharp contrast, beginning with Lewis Powell, and then including both his clerk, Larry Hammond, as well as Potter Stewart, two of the most interested and influential Justices focused upon District Judge Jon Newman’s brand new opinion in Abele v. Markle and its discussion of fetal viability as best illuminating the unclear path that lay before them. It was far from unusual for the Justices to rely so heavily upon the analytical approach of lower federal jurists; less than two years earlier, in Griggs v. Duke Power Company, a landmark ruling that represented the Court’s first substantive interpretation of Title VII of the Civil Rights Act of 1964, Chief Justice Burger’s ruling for a unanimous Court drew extensively and directly from recent opinions authored by prominent Circuit Judges John D. Butzner, John Minor Wisdom, and Simon E. Sobeloff.
The impact of Newman’s opinion, particularly upon Powell, went a long way towards explaining why fetal viability, rather than the end of the first trimester, became the fundamental constitutional “cut-off point” for abortion in the eyes of the U.S. Supreme Court. Powell’s repeated recommendation of that shift finally prevailed upon a clearly hesitant Harry Blackmun after first Mark Tushnet, on behalf of Thurgood Marshall, and then William Brennan, just like Randall Bezanson and George Frampton before him within Blackmun’s own chambers, strongly endorsed Powell’s view that Roe and Doe’s protection of a woman’s largely unfettered right to choose abortion should be extended from approximately twelve weeks of pregnancy to twenty-four.
It is of course ironic that Harry Blackmun, who has gone down in history first and overwhelmingly foremost as the author of Roe v. Wade, privately opposed making the case’s holding anywhere near as extensive as his final opinion actually came to be. Less striking perhaps, but still notable, is the initially similar opposition by the Court’s most notorious liberal, William O. Douglas, and a strong and perhaps poignant counterfactual argument can be made that an actual majority of the Roe Court, if one further tallies the always-reluctant Warren Burger along with the two actual dissenters, Byron White and William Rehnquist, would have preferred a holding that reached only to the end of the first trimester. But, instead, the more strongly articulated preferences of Lewis Powell, William Brennan, Thurgood Marshall’s chambers, and Potter Stewart decisively prevailed as Blackmun, encouraged also by Randall Bezanson, finally moved to accept Jon Newman’s emphasis upon the decisiveness of fetal viability. That a supposedly conservative, southern appointee of Republican President Richard M. Nixon, in tandem with a Roman Catholic justice named to the Court by Republican President Dwight D. Eisenhower, and indirectly aided months earlier by the dissenting Byron White, made Roe v. Wade and Doe v. Bolton dramatically more far-reaching than they would have been had Harry Blackmun adhered to the view of pregnancy he brought to those repeated 1972 exchanges further underscores how ironic indeed it is that Roe and Doe came to be what they were on January 22, 1973.
In the spirit of this Symposium, three final points are in order. First, nine years ago, Jack Balkin stated the fundamental bottom-line of the constitutional principle concerning abortion as accurately and succinctly as any federal jurist ever has: “Individuals have the fundamental right to decide whether they want to become parents” and “the state may not force people to become parents against their will.” Additionally, as Balkin correctly framed it, “[w]here a woman’s life or health is not in danger, the right to abortion is the right to a fair and realistic opportunity to choose whether or not to become a mother.”
Second, it is imperative, especially for those of us who believe, as the controlling “trio” opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey rightly emphasized more than twenty years ago, that Roe v. Wade stands in complete partnership with Brown v. Board of Education as one of the two greatest twentieth-century constitutional beacons of human liberty and equality, and who also unapologetically embrace that oftentimes in many women’s lives, to utilize the title of a wonderful but little-remembered 1975 book, Abortion Is A Blessing, to forthrightly acknowledge that there is a fundamental difference between an eight or ten-week abortion and an eighteen or twenty-week abortion. Late second trimester abortion procedures are ethically as well aesthetically more difficult than first trimester pregnancy terminations, just as Harry Blackman clearly acknowledged before the combined efforts of Lewis Powell, William Brennan, and a handful of young law clerks changed Roe and Doe into the opinions that we have known since 1973. Fetal viability, as Casey, Stenberg, and even Gonzales all acknowledge, should indeed remain the fundamental constitutional threshold, but we who defend Roe and champion Casey must not be shy in accepting open-minded discussion of what sorts of therapeutic standards, depending upon women’s individual circumstances, might properly govern access to legal abortion once a pregnancy reaches sixteen weeks or later.
But that discussion cannot take place absent two things: first a universal acknowledgement that in every individual case, an earlier abortion is ethically preferable to a later abortion, and that statutes that have the effect of forcing women later into their pregnancies before they are able to access a legal abortion are thus a fortiori ethically repugnant; and second a universal acknowledgement that anyone and everyone who professes to want to reduce the incidence of abortion must publicly champion the widest and freest possible availability of all forms of contraception. Too oftentimes in debates over abortion, some participants who focus upon the undeniable humanity of the fetus refuse to acknowledge that their opposition to abortion is inseparable from an absolute opposition to all forms of “artificial” contraception. If any implicit or explicit “grand bargain” is to resolve, on the ground, the United States’ ongoing conflict over how easily and in what circumstances should legal abortion be readily available, an ungrudging embrace of maximum possible contraceptive access is the absolute essential and foundational building block.