By Dave Andrusko
We are two months and a week out from commemorating the 49th anniversary of Roe v. Wade. We are a little over two weeks away from the High Court addressing Dobbs vs. Jackson Women’s Health Organization. On December 1, the justices will hear oral arguments in Mississippi’s “Gestational Age Act” which prohibits abortion after the 15th week with narrow exceptions.
With that a reminder, it’s helpful to both veterans and newcomers alike to our Movement to talk about what took place the year and a half from the time the Supreme Court first agreed to hear the abortion cases—Roe v. Wade and Doe v. Bolton—until they were actually decided on January 22, 1973. It was by no means a straightforward journey that culminated with Justice Harry Blackmun delivering a decision that, initially, he furiously tried to convince himself and others was “modest.”
Way back in 2005, Los Angeles Times Supreme Court reporter David G. Savage wrote a very helpful piece headlined, “Roe Ruling: More Than Its Author Intended.” It is by no means the last word—there has been a slew of books and a ton of popular and academic articles written since—but it’s a very good place to start. Of the 20+points that could be made, here are five.
1. The Roe and Doe decisions ran a long, circuitous route, due to changes on the High Court. The justices first agreed to hear a challenge to Texas’ and Georgia’s abortion laws in June 1971. Interestingly enough, neither Blackmun nor Chief Justice Warren Burger did so. However, due to the sudden back-to-back retirements of the gravely ill Justices Hugo Black and John Harlan in September, only seven Justices were seated. “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.”
According to Savage there was a consensus among the seven for change of some sort. The starts and stops, the internal politicking on the Court, the gradual radicalization of would finally be Roe and Doe is fascinating, But the overarching point is that from the time Blackmun wrote his initial 17 page draft in May of 1972 until the final decisions eight months later, the reach of Roe and Doe lethally metastasized.
2. As many have noted, Justice Blackmun’s pro-abortion militancy was a post-Roe development. Early on he believed “that doctors needed to have leeway to do medically necessary abortions,” according to Savage’s telling:
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.
3. Blackmun came back from a summer spent researching the history of abortion at the Mayo Clinic library [a history which was laughably incomplete, one-sided, and inaccurate]. “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,” Savage wrote.
Different authors offer varying theories which Justice or combination of Justices pushed Blackmun to end with an “opinion for the court that struck down all of the nation’s abortion laws,” Savage wrote which, “Equally important…made virtually all abortions legal as a matter of a constitutional right.”
The primary culprits are usually Justices Thurgood Marshall, William Brennan, and, to a lesser extent, William Douglas. In Savage’s history, a key player was Justice Powell, “the soft-spoken Virginian who was new to the court, [who] firmly supported a woman’s right to abortion. He urged Blackmun to say it directly rather than attack the laws as vague.” [Pro-abortion legal scholar and author David Garrow attributes much of the impetus to extend the “right” to abortion past the first trimester to Powell.]
4. On November 21, 1972, “Blackmun sent around revised drafts of the majority opinions,” Savage wrote. “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,’” although in a memo to Blackmun’s colleagues, “he voiced uncertainty.”
Then the fatal turn. 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,” according to Savage. In Blackmun’s final draft, “states were told they could not restrict abortions through the second trimester.”
Which leads us to Doe v. Bolton, Roe’s companion case.
5. “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,” Savage wrote. “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.”
But Burger and Blackmun were determined to publicly minimize the impact, a strategy which the media dutifully parroted. Savage wrote
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.”
But, of course, that is exactly what the High Court did nearly 49 years ago today.