Abortion In The United States

"Blackmun adopted the expansion to viability, and in a memo to the Justices of December 15 indicated that he would be revising the draft opinions to shift the decisive point from the end of the first trimester to viability. On December 21, Blackmun circulated his revised third draft in Roe, the first to include the trimester framework and the first to identify the right as extending to viability. At this point, the abortion cases were effectively decided."

"It was clear to the Justices that he practical effect of their decision would be to eliminate the laws of most states. In is May 25, 1972, memo to the Justices, Blackmun noted: I should observe that, according to the information contained in some of the briefs, knocking out the Texas statute in Roe v. Wade will invalidate the abortion laws in a majority of our States. Most states focus only on the preservation of the life of the mother. But Blackmun’s memo also shows the failure to recognize the impact of Doe in eliminating all the other abortion laws. Blackmun clearly underestimated the extent that the decision would unsettle law and policy and public health. In a memo to the Justices on December 21, 1972, Blackmun commented: “I suspect there will be other aspects of abortion that will have to be dealt with at a future time.” Justice Brennan also acknowledged the scope of Doe in a memo to Justice Blackmun in December: [D]oes not your opinion in the Georgia case [Doe v. Bolton[ ccut the heart out of the Georgia statute? If so, should we leave other portions of the statute intact, as I think you do? Is this a desirable result,, particularly during the interval between our decision and the enactment of a new, constitutionally permissible statute by the Georgia legislature?"

"Blackmun assumed that the states would be able to immediately respond to the decisions with amendment to their laws, and suggested to the Justices that the abortion decisions should be released “no later than the week of January 15 to tie in with the convening of most state legislatures.” A week before the abortion decisions were released, Blackmun distributed a draft announcement with a number of political considerations that he proposed to read from the bench and distribute to the press: Fortunately, the decisions come down at a time when a majority of the legislatures of the states are in session. Presumably where these decisions cast doubt as to the constitutional validity of a state’s abortions statute, the legislature of that state may immediately reviews its statute and amend ti to bring it into line with the constitutional requirements we have endeavored to spell out today. If this is done, there is no need whatsoever for any prolonger period of unregulated abortion practice. But Blackmun failed to realize that the vagueness and complexity of the opinions, coupled with the powers of the federal courts to apply Roe and Doe, would create a public vacuum that would continue for decades. That same day, January 16, one of Justice Powell’s clerks gave him a memo that noted the “lack of state authority to regulate in the first trimester.” Perhaps the Blackmun and Powell chambers had discussed this point."

"Professor Joseph Dellapenna, the foremost historian of abortion law in the Western world, has argued that, by 1960, such changes shaped the demand for abortion before the cultural upheaval of the 1960s. These included the impact of the Industrial Revolution on family life and work patterns, the entrance of more women into the workforce, greater sexual experimentation, and the desire to limit pregnanct, along with technology that made abortion-in terms of immediate risks-more effective and safer for the woman."

"Concern about population directly influenced the Justices. On December 27, 1971, two weeks after the first argument in Roe and Doe, a psychiatrist from the Cleveland Clinic, Dr Richard A. Schwartz, wrote a letter to Justice Brennan. Believing that the Court would decide the abortion cases before July 1972, Schwartz enclosed a copy of an article he wrote that was scheduled to be published in the August 1972 issue of the American Journal of Public Health, entitled “The Social effects of Legal Abortion.” The abstract read: The yearly number of unwanted children born in the United States is 800,000 or 20 percent of all births. Forty percent of all births in poor families are unwanted. Because of the limitations of contraception the most feasible way of decreasing the incidence of unwanted births is legalization of abortion. If all unwanted births could be prevented, this would lower the birth-rate in the United States by more than 50 percent, substantially lower the incidence of poverty and lead to a decrease in the number of inadequately reared children potentially destined to become criminals, psychotics, drug addicts, and alcoholics."

"If 1967 had been the breakthrough year for legislation, 1970 was the year of the court challenge. Challenges to state laws were filed in many federal courts in 1970. Roe v. Wade and Doe v. Bolton were two of some twenty cases attempting to strike down state abortion laws filed in federal courts in various states between 1969 and 1972."

"Justice Blackmun’s tally in his opinion in Roe was six federal decisions to strike state abortion statutes and five to sustain, plus two state court decisions to strike state laws, and three state courts to uphold them. The actual tally was: seven federal court decisions struck down state laws, five federal decisions upheld state laws; five state court decisions struck downs state abortion laws, sixteen state courts upheld state laws. A number of other abortion cases in federal court had been thrown out on procedural grounds. Among the nine courts (seven federal, five state) that held state statutes “unconstitutional,” however, there was little consensus in their explanation for why abortion laws were unconstitutional or in their definition of the scope of the abortion right. About the only common theme among the courts was Griswold: the courts cited each other for the notion that Griswold’sbroad phrasesmeant that abortion laws were unconstitutional. The legal advocates put all their hopes on the Supreme Court’s decision in Griswold."

"The activists who spurred the abortion cases, and the Justices, were personally affected by the cultural currents. Roy Lucas took his girlfriend to Puerto rico for an abortion before 1966. Several years before she argued Roe, Sarah Weddington reportedly went to Mexico for an abortion. Justice Blackmun’s daughter revealed in 2006 that she became pregnant while unmarried in 1966. Justice Powell told journalist Nina Totenberg, in an interview after his retirement, that he had helped a law firm “office boy” avoid prosecution when the man was involved in an illegal abortion that resulted in a woman’s death in Richmond, Virginia. And Justice Marshall apparently was also influenced by personal experiences."

"The record that came up to this Court contains the amended petition of Jane Roe, an unsigned alias affidavit, and that is all."

"And that again is one of the great problems with this case. We know o no facts, there are no facts in this case, no established facts."

"In the lower court hearings of Roe and Do, however, the parties did not present evidence-there were no trials- and the judges did not look at evidence. The federal court hearings in Roe an Do were conducted without examination of medical or other evidence and without hearing witnesses subjected to cross-examination. Instead, both district courts in Texas and Georgia simply decided that “the facts don’t matter” (in the words of Georgia’s attorney, Dorothy Beasley”), and merely held two-hour long oral arguments, in which much of the time was taken up with procedural and jurisdictional questions. Nor was there any intermediate review by an appeals court in Roe and Doe."

"There were numerous abortion cases in the courts in 1970, and more followed in 1971 and 1972; the Justices could have selected other cases with a factual record. At the time the Justices chose Roe and Doe, at least seven other abortion cases were pending at the Supreme Court. Remarkably, the Justices chose not one but two abortion cases without any factual record. Why?"

"A few years after Roe, a former law clerk for Judge Edward Lumbard (who wrote the first decision in 1972 striking down the Connecticut abortion law) pointed out that the lower court decisions were not thorough and that the Supreme Court was hasty in hearing Roe and Doe before the issues were fully explored in the lower courts."

"Three years after Roe, Justice Thurgood Marshall wrote the opinion for a unanimous Court noting the impropriety of deciding constitutional questions “in the absence of ‘an adequate and full-bodied record.’” In another case four years after Roe, Justice Blackmun wrote, “The problem is a complex one, about which widely differing views can be held, and, as such, it would be somewhat precipitate to take judicial notice of one view over another on the basis of a record as barren as this.”"

"Some of the same Justices who heard and decided Roe and Doe had emphasized the importance of a factual record in prior “privacy” cases. In Poe v. Ullman in 1961, Justice Brennan supported dismissal of the case, in part, because of the “skimpy record.” During the Supreme Court oral argument in January 1971 in the Vuitch case, involving the District of Columbia abortion law, Samuel Huntington, the attorney for the United States, pointed out that the record contained “no development whatever of any of the facts bearing on the charges contained in the indictment,” and Chief Justice Burger noted that the Court might benefit from “a record of testimony as to what is the present state of medical knowledge.” And in his opinion in the Vuitch case decided the day before the Justices voted to hear Roe, Justice White emphasized that “this case comes to us unilluminated by facts or record.” If this was true in Vuitch-which was a comparatively limited inquiry into whether the District of Columbia’s abortion law was “unconstitutionally vague”-it was even truer in Roe and Doe, which aimed to sweep away the abortion laws of all fifty states. It is not as if the Justices were not warned that there was no factual record. In the first Doe argument, Georgia’s attorney, Dorothy Beasley, made the lack-of-factual-record point no less than five times. Beasley pointed out that there was no record to show how abortions were being done under the new 1968 statute in Georgia. Georgia and thirteen other states had enacted these laws between 1967 and 1970, and the Court did not have any facts about how they operated. How could the Supreme Court decide to legalize abortion on a broader basis, through the first and second trimester, when they did not have even a basic understanding, developed through a trial, of how these “reform” statues had operated in the few months or years since they had been enacted? These problems suggest that the Court should have reached no decision, or sent the case back for trial, or taken other cases with a trial record, or at least reached a narrow decision. Instead, the Justices issues one of the broadest decisions possible."

"In addition to the lack of a factual record, the oral arguments were burdened by jurisdictional and procedural issues that consumed a considerable amount of time, leaving little time to focus on the substantive medical, historical, and constitutional questions. The first twenty minutes of Weddington’s first argument in Roe in December 1971 was spent on procedure and jurisdiction, an much of the last ten minutes as well. The Court asked questions such as who brought the suit, whether they could sue, whether these was any real controversy between Jane Roe and the public officials named as defendants, whether the Court should even hear the appeal, whether the parties should have gone to the federal appeals court first, whether the case was moot, whether an injunction was appropriate. A substantial part of the discussion by Jay Floyd, the attorney for Texas in the first Roe argument, was also spent on procedure and jurisdiction. In the first Doe argument, Margie Pitts Hames addressed some questions on jurisdiction and procedure, and her final question was on jurisdiction Dorothy Beasley also addressed such questions. Again, the amount of time spent on these procedural and jurisdictional questions lends considerable credence to Justice Blackmun’s story that Justice Stewart urged the subcommittee of Justices to hear Roe and Doe under the “misapprehension” that they involved “nothing more than an application of Younger v. Harris.” Indeed, the subcommittee could have been easily misled by the first papers filed in the Supreme Court by Roy Lucas and Sarah Weddington on October 6, 1970, asking the Justices to hear the case. The papers (called a “Jurisdictional Statement) consisted of thirty-three pages and presented only two “Questions” for the Justices to address, relating to the propriety of an injunction by the federal court and whether the married couple in the case (not Jan Roe) had “standing” to sue-on other words, procedural issues."

"These procedural issues raised many red flags that the Justices ignored. Shouldn’t the lower courts have conducted a trial, with witnesses, and evidence, and cross-examination? Did either Jane Roe or Mary Doe accurately represent women who wanted abortions? Some of these “technical” issues dealt with two requirements of any viable constitutional case: “standing” (who can bring a suit to challenge a law?) and “case and controversy” (is there any real conflict between the parties that can clarify the constitutional issues?). These two requirements-“standing” and “case and controversy”-are important for sound judicial decisions because they enable judges to see the practical consequences of legislation. Georgia’s attorney Beasley brought both of these requirements directly to the Justice’s attention, but the Justices brushed them aside. The aim of Justices Brennan and Douglas-as evidenced by their phone and written exchanges on December 29 and 30, 1971-was to find the best way to get around them."

"Little time was left for the substantive questions in both cases. For example, the question of where the right to “abortion” could be found in the Constitution became virtually a joke at the first argument. Weddington was willing to say it could be found almost anywhere-the “due process clause, equal protection clause, the Ninth Amendment, and a variety of others. . . . “ The statement was so weak that Justice Stewart equipped “and anything else that might obtain,” provoking laughter from the audience. To which Weddington responded, “yeah, right,” and laughed. Another red flag, but again, no Justice challenged Weddington’s weak assertions."

"So much of the first Doe argument in December 1971 was spent on procedural issues that Hames, the attorney for the Georgia plaintiffs, made no statement in her first argument about the constitutional basis of her case or of a right to abortion. And no Justice questioned this. There were virtually no questions on the source of any constitutional right to abortion and almost no questions on the historical basis for such a right. Hames left this fundamental issue to her one-minute rebuttal of Beasley, admitting that “we have not designated a constitutional basis for our case.” So Hames gave a one-sentence answer “I would like to say that it is-we contend that the procedural requirement infringe Due Process and Equal Protection, and that the right of privacy, an enunciated in Griswold, of course, is our basic reliance.” That was the extent of the constitutional discussion at the first oral argument in Doe. The procedural problems should have cautioned the Justices that the Texas and Georgia cases prevented the evaluation of fundamental questions and were unstable and inadequate bases on which to make a decision. According to varius reports, “Burger had complained that part of his problem with the abortion cases resulted from the poor quality of the oral argument. On reargument, he suggested, the Court could appoint ‘friends of the court’ (amici curiae) forboth sides, outside counsel who could make better presentations.” Blackmun, too, acknowledged that the cases were poorly argued the first time. White probably shared this view. Instead, the bloc of four Justices-Douglas, Brennan, Marshall, and Stewart-heavily pressured Blackmun in May and June 1972 against a second argument."

"Despite the fact that abortion was legal in some other countries and in a few states, there were no reliable peer-reviewed medical data, and certainly no long-term studies, about it. Nevertheless, Weddington and Hames argued for the elimination of all state abortion laws, relying on unsubstantiated statistics. For example in the second argument in Doe, Hames admitted that “there aren’t any statistics that are very reliable on this,” but then went on to say that “writers in the area estimate several thousand per year in the United States and several thousand deaths have occurred from illegal abortions.” Likewise, Hames claimed in the first Doe argument that “illegal abortion and the complications therefrom is the largest single cause of maternal mortality in the United States. Therefore, abortion statutes have resulted in one of our nation’s largest health problems.” This was a large claim for which there was no basis in the record, though this claim was made in several amicus curiae (“friend of the court”) briefs. No Justice questioned Hames on this or any of her other undocumented sociological claims."

""Total maternal deaths” per year-from all causes-had dropped from 7,267 in 1942 to 780 in 1972. Of the 780 maternal deaths in 1972, 140 (or 18 percent) were attributed to “abortion deaths.” But this included spontaneous miscarriages, too. The NCHS data were obviously not in the record and were not submitted in any “friend-of-the-court” brief. Weddington’s arguments were filled with sociological claims that had no foundation in the record, including the legal disabilities that pregnant women incurred in Texas, legal problems in Texas for unwed mothers, how many women had abortions, the numbers of illegal abortions, the risks of illegal abortion, the risks of delay in getting a legal abortion, the impact ofNew York’s law that legalized abortion in July 1970, and the impact of laws in other states that had legalized abortion since 1967."

"[W]hether or not there was any record, Weddington’s arguments made a definite impact. After seventeen minutes of the first argument in Roe, with only a few minor questions to Weddington, Justice Stewart broke in to ask a question and prefaced it by saying, “so far on the merits, you’ve told us about the important impact of this law, and you made a very eloquent policy argument against” the Texas law. This may have been the most important moment in the first round of arguments, perhaps in both rounds."

"Historical claims also played a key role in the abortion decisions. History was critical for least two reasons: to show the purpose of the abortion laws and to see whether any right to abortion existed and could be said to be “deeply rooted” in American law and history. In Griswold, Justice Douglas had written for the Court: In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and (collective) conscience of our people” to determine whether a principle is “so rooted (there) . . . as to be ranked as fundamental.” The inquiry is whether a right involved “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the case of all our civil and political institutions.’” That standard naturally led to the question of whether abortion qualified. But the Justices failed to apply that test in “Roe” and did not look closely at the relevant history."

"Justice Blackmun ended up relying for most of his legal history on the novel historical theories of Cyril Means, the general counsel of the National Association for the Repeal of Abortion Laws (NARAL). Weddington and Hames expressly urged the Court, at least three times, to read Means’s articles. Weddington subsequently reported that the Justices had copies of Means’s articles on the bench during the argument. Beasley specifically denied the accuracy of Means’s historical theories, but no Justice questioned them, and they became an essential pillar of Justice Blackmun’s opinion in Roe. Mean’s historical claims-which are explored in greater depth in chapter 6-were completely unprecedented. They were disputed at the time, and legal and historical scholarship has since definitively refuted them, but they had a decisive impact on the Justice’s questions, deliberations, and final opinions in the abortion cases."

"In the first Roe argument, Weddington claimed (citing Means) that “at the time the Constitution was adopted there was no common law prohibition against abortions; that they were available to the women of this country.” This was inaccurate on both counts: the English common law’s prohibition of abortion after quickening was adopted by the American colonies, and abortion was not available as a practical matter because it was either ineffective or deadly or both. Means’s other claim was that the purpose of abortion laws was only to protect the health of the mother, not the child. If abortion laws were adopted only for the health of the mother, however, there is no adequate explanation for why abortion laws were “criminal” laws. Why was abortion, in contrast to all other surgery, uniquely abortion statutes as criminal?"

"A number of fairly standard criticisms can be made of Roe. A plausible narrower basis of decision, that of vagueness, is brushed aside in the rush toward broader ground. The opinion strikes the reader initially as a sort of guidebook, addressing questions not before the Court and drawing lines with an apparent precision one generally associates with a commissioner’s regulations. On closer examination, however, the precision proves largely illusory. Confusing signals are emitted, particularly with respect to the nature of the doctor’s responsibilities and the permissible scope of health regulations after the first trimester. The Court seems, moreover, to get carried away on the subject of remedies: Even assuming the case can be made for an unusually protected constitutional right to an abortion, it hardly seems necessary to have banned during the first trimester all state regulation of the conditions under which abortions can be performed. By terming such criticisms “standard,” I do not mean to suggest they are unimportant, for they are not. But if they were all that was wrong with Roe, it would not merit special comment."

"Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman’s life. And at bottom Roe signals the Court’s judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection. But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt “the preferred life styles” of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one. Yet such laws survive, on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral. Of course the consensus is not universal but it is sufficient, and this is what is counted crucial, to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice."

"Were I a legislator I would vote for a statute very much like the one the Court ends up drafting. I hope this reaction reflects more than the psychological phenomenon that keeps bombardiers sane—the fact that it is somehow easier to “terminate” those you cannot see—and am inclined to think it does: that the mother, unlike the unborn child, has begun to imagine a future for herself strikes me as morally quite significant. But God knows I’m not happy with that resolution. Abortion is too much like infanticide on the one hand, and too much like contraception on the other, to leave one comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher’s hypothetical."

"The Court reports that some amici curiae argued for an unlimited right to do as one wishes with one’s body. This theory holds, for meat any rate, much appeal. However, there would have been serious problems with its invocation in this case. In the first place, more than the mother’s own body is involved in a decision to have an abortion; a fetus may not be a “person in the whole sense,” but it is certainly not nothing. Second, it is difficult to find a basis for thinking that the theory was meant to be given constitutional sanction: Surely it is no part of the “privacy” interest the Bill of Rights suggests. [I]t is not clear to us that the claim . . . that one has an unlimited right to do with one’s body as one pleases bears a close relation ship to the right of privacy. . . Unfortunately, having thus rejected the amici’s attempt to define the bounds of the general constitutional right of which the right to an abortion is a part, on the theory that the general right described has little to do with privacy, the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Apparently this conclusion is thought to derive from the passage that immediately follows it: The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests. I suppose there is nothing to prevent one from using the word “privacy” to mean the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. Our life styles are constantly limited, often seriously, by governmental regulation; and while many of us would prefer less direction, granting that desire the status of a preferred constitutional right would yield a sys tem of “government” virtually unrecognizable to us and only slightly more recognizable to our forefathers. The Court’s observations concerning the serious, life-shaping costs of having a child prove what might to the thoughtless have seemed unprovable: That even though a human life, or a potential human life, hangs in the balance, the moral dilemma abortion poses is so difficult as to be heartbreaking. What they fail to do is even begin to resolve that dilemma so far as our governmental system is concerned by associating either side of the balance with a value inferable from the Constitution."

"Of course a woman’s freedom to choose an abortion is part of the “liberty” the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone’s freedom to do what he wants. But “due process” generally guarantees only that the inhibition be procedurally fair and that it have some “rational” connection—though plausible is probably a better word—with a permissible governmental goal. What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus’s existence is unable to overcome it—a protection more stringent, I think it fair to say, than that the present Court ac cords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it. And that, I believe—the predictable early reaction to Roe notwithstanding (“more of the same Warren-type activism”)—is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking."

"It may be, however—at least it is not the sort of claim one can disprove —that the “right to an abortion,” or noneconomic rights generally, accord more closely with “this generation’s idealization of America” than the “rights” asserted in either Lochner or Dandridge. But that attitude, of course, is precisely the point of the Lochner philosophy, which would grant unusual protection to those “rights” that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them. The Constitution has little to say about contract, less about abortion, and those who would speculate about which the framers would have been more likely to protect may not be pleased with the answer. The Court continues to disavow the philosophy of Lochner. Yet as Justice Stewart’s concurrence admits, it is impossible candidly to regard Roe as the product of anything else."

"Thus the test Lochner and its progeny purported to apply is that which would theoretically control the same questions today: whether a plausible argument can be made that the legislative action furthers some permissible governmental goal. The trouble, of course, is they misapplied it. Roe, on the other hand, is quite explicit that the right to an abortion is a “fundamental” one, requiring not merely a “rational” defense for its inhibition but rather a “compelling” one. A second difference between Lochner et al. and Roe has to do with the nature of the legislative judgments being second-guessed. In the main, the “refutations” tendered by the Lochner series were of two sorts. The first took the form of declarations that the goals in terms of which the legislatures’ actions were defended were impermissible. Thus, for example, the equalization of unequal bargaining power and the strengthening of the labor movement are simply ends the legislature had no business pursuing, and consequently its actions cannot thereby be justified. The second form of “refutation” took the form not of denying the legitimacy of the goal relied on but rather of denying the plausibility of the legislature’s empirical judgment that its action would promote that goal."

"The Roe opinion’s “refutation” of the legislative judgment that anti abortion statutes can be justified in terms of the protection of the fetus takes neither of these forms. The Court grants that protecting the fetus is an “important and legitimate” governmental goal and of course it does not deny that restricting abortion promotes it. What it does, instead, is simply announce that that goal is not important enough to sustain the restriction. There is little doubt that judgments of this sort were involved in Lochner et al., but what the Court said in those cases was not that the legislature had incorrectly balanced two legitimate but competing goals, but rather that the goal it had favored was impermissible or the legislation involved did not really promote it. Perhaps this is merely a rhetorical difference, but it could prove to be important. Lochner et al. were thoroughly disreputable decisions, but at least they did us the favor of sowing the seeds of their own destruction. To say that the equalization of bargaining power or the fostering of the labor movement is a goal outside the ambit of a “police power” broad enough to forbid all contracts the state legislature can reasonably regard “as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good” is to say something that is, in a word, wrong. And it is just as obviously wrong to declare, for example, that restrictions on long working hours cannot reasonably be said to promote health and safety. Roe’s “refutation” of the legislative judgment, on the other, is not obviously wrong, for the substitution of one nonrational judgment for another concerning the relative importance of a mother’s opportunity to live the life she has planned and a fetus’s opportunity to live at all, can be labeled neither wrong nor right. The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business. It looks different from Lochner—it has the shape if not the substance of a judgment that is very much the Court’s business, one vindicating an interest the Constitution marks as special—and it is for that reason perhaps more dangerous. Of course in a sense it is more candid than Lochner. But the employment of a higher standard of judicial re view, no matter how candid the recognition that it is indeed higher, loses some of its admirability when it is accompanied by neither a coherent account of why such a standard is appropriate nor any indication of why it has not been satisfied.*Roe is a case in point. Certainly, many will view it as social progress. (Surely that is the Court’s view, and indeed the legislatures had been moving perceptibly, albeit too slowly for many of us, toward relaxing their anti-abortion legislation.) And it is difficult to see how it will weaken the Court’s position. Fears of official disobedience are obviously groundless when it is a criminal statute that has been invalidated. To the public the Roe decision must look very much like the New York Legislature’s recent liberalization of its abortion law. Even in the unlikely event someone should catch the public’s ear long enough to charge that the wrong institution did the repealing, they have heard that “legalism” before without taking to the streets. Nor are the political branches, and this of course is what really counts, likely to take up the cry very strenuously: The sighs of relief as this particular albatross was cut from the legislative and executive necks seemed to me audible. Perhaps I heard wrong—I live in the North east, indeed not so very far from Hyannis Port. It is even possible that a constitutional amendment will emerge, though that too has happened before without serious impairment of the Position of the Institution. But I doubt one will: Roe v. Wade seems like a durable decision. It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court—it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s—it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

"Identification and definition of the values with which the Constitution is concerned will often fall short of indicating with anything resembling clarity the deference to be given those values when they conflict with others society finds important. (Though even here the process is sometimes more helpful than the commentators would allow.) Nor is it often likely to generate, fullblown, the “neutral” principle that will avoid embarrassment in future cases. But though the identification of a constitutional connection is only the beginning of analysis, it is a necessary beginning. The point that often gets lost in the commentary, and obviously got lost in Roe, is that before the Court can get to the “balancing” stage, before it can worry about the next case and the case after that (or even about its institutional position) it is under an obligation to trace its premises to the charter from which it derives its authority. A neutral and durable principle may be a thing of beauty and a joy forever. But if it lacks connection with any value the Constitution marks as special. it is not a constitutional principle and the Court has no business imposing it. I hope that will seem obvious to the point of banality. Yet those of us to whom it does seem obvious have seldom troubled to say so. And because we have not, we must share in the blame for this decision."

"SUPREME COURT JUSTICE Harry Blackmun has long been seen as the primary architect of the landmark 1973 abortion decision in Roe v. Wade--with particular encouragement coming from his two most liberal colleagues, William Brennan and Thurgood Marshall. But a close reading of the papers of the late Justice Lewis Powell, Jr.--only recently made available to anyone other than his official biographer--provides a striking revelation about the profound influence that the centrist Southern justice had on the historic case. The Powell Papers make clear that clerk Larry Hammond, drawing from a contemporaneous lower federal court abortion opinion written by Judge Jon O. Newman, helped provide Powell with the analytical insight that persuaded a seven-justice majority to broaden Roe's new protection of abortion rights from the first trimester all the way to the threshold of fetal viability."

"Powell jotted his own initial reaction to Blackmun's drafts in the margin: "I doubt the validity of the Texas statute as unduly restrictive of individual rights (privacy) but I am not persuaded it is vague." He added, "Why not consolidate Texas + Ga. cases + rely on Ga. type analysis--if we are to invalidate these laws?" On White's draft, Powell again noted, "I agree that Texas statute is not unconst. vague. But I'm not clear as to where this draft leaves the Texas statute. Does J. White think Tex. statute is valid?""

"Hammond summarized for Powell the constitutional privacy analyses that different justices had offered in the landmark 1965 birth control case, Griswold v. Connecticut, and concluded that "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 suggested 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')." Alluding to Texas's and Connecticut's claims that fetuses become constitutional "persons" at the "moment of conception," Hammond noted how "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." Hammond concluded by observing that "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.""

"Powell's notes indicate that while White believed that a "woman must have some const. right to protection," he nonetheless was "unwilling to second-guess state leg. as to its interest. Pure convenience of woman can't override state interest," and the Court "can't allow abortion on demand." Powell's notes fail to indicate, as both Brennan's and Douglas's do, that it was Powell's own comments that led Blackmun to say that he would jettison his void-for-vagueness approach to Roe and make the Texas case, rather than the Georgia one, the "lead" decision."

"Powell's file discloses that a previously unrevealed private response from Rehnquist was one of the first that Blackmun received. Rehnquist acknowledged 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.""

"Blackmun's November drafts, unlike the final Roe and Doe opinions the Court handed down on January 22, 1973, held that states must leave the abortion decision to a woman and her doctor only during the first trimester of pregnancy. Subsequent to those first three months, states could restrict legal abortions to carefully specified therapeutic categories. Thus Rehnquist asked Blackmun, "Ought not your Texas opinion to invalidate the Texas abortion statute only as applied to a litigant who seeks abortion within the first `trimester,' rather than, as I understand you to do, invalidating it in toto?" Rehnquist also similarly wondered, whether in Doe, "Would you permit any more latitude to Georgia in her procedural requirements after the first trimester" as opposed to during it? Rehnquist's subdued feelings about Roe, which contrast starkly with his far more intense expressions in subsequent abortion cases, do not come as a complete surprise. But his letter to Blackmun, like Blackmun's newly available private response, adds significant richness to Roe's history. In reply, Blackmun told Rehnquist that he would have "conceptual difficulty" in voiding the Texas statute only as it pertained to the first trimester, and reiterated how he still believed the law was unconstitutionally vague, even though his opinion now bypassed that issue entirely. In response to Rehnquist's second question, Blackmun expressed accord: "I agree that after the first trimester a state is entitled to more latitude procedurally as well as substantively." But it fell to Lewis Powell to first broach to Blackmun the biggest question that his November drafts raised, namely whether the Court's forthcoming constitutional ruling should indeed be limited primarily to abortions during just the first trimester of pregnancy. Larry Hammond had highlighted the issue in a six-page memo to Powell on November 27. Hammond was pleased that Blackmun "has embraced the straightforward constitutional view taken by Judge Newman in the Connecticut case," but was unhappy with how Blackmun had identified the end of the first trimester as legally decisive. "Since the statutory prohibition [in Texas] was total, 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.""

"Doesn't it seem that this language overstates the doctor's role and undercuts the woman's personal interest in the decision?" asked Hammond, following with the recommendation that Powell should advocate the Court instead say that the responsibility would rest "with the physician and his patient."

"Within a day of receiving Hammond's memo, Powell wrote a private letter to Blackmun. "I am enthusiastic about your abortion opinions. They reflect impressive scholarship and analysis." But Powell quickly got to his real question, which was "whether you view your choice of `the first trimester' as essential to your decision." Powell noted how Blackmun himself had volunteered that this choice was "arbitrary" in the cover memo that had accompanied his new drafts, and voiced his own--or his and Hammond's--proposal: "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." Quoting Judge Newman's language about the constitutional importance of fetal viability, Powell told Blackmun 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." Powell observed that the Court did not have to say anything, and that Newman's opinion "pointed the way generally toward `viability' without making this an explicit ruling," but Powell's letter was the first intra-Court communication to put the option of extending constitutional protection for abortion choice all the way to fetal viability explicitly on the table."

"Harry Blackmun replied to Powell five days later in a previously unquoted private letter that ironically reveals how highly reluctant Roe's author was to extend the ruling to the point that the Court's actual decision indeed reached: 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. I would be willing to state, either in the opinion or in a footnote, what is essentially the obvious--namely, that a state is free to leave the decision to the attending physician and to regulate at a later date than the end of the first trimester."

"Larry Hammond expressed elation at Blackmun's memo, telling Powell in a cover note that Blackmun "expresses what I feel is the most important practical consideration. For many poor, or frightened, or uneducated, or unsophisticated girls, the decision to seek help may not occur during the first 12 weeks. The girl might be simply hoping against hope that she is not pregnant but is just missing periods. Or she might know perfectly well that she is pregnant but be unwilling to make the decision--unwilling to tell her parents or her boyfriend." Powell drew a crisp bracket around these sentences when he read Hammond's note, and scrawled a bold, dark "yes" in the margin."

"In response to Blackmun's explicit request for reactions, both Thurgood Marshall and William Brennan quickly endorsed the shift to viability first suggested by Powell. After reviewing Hammond's note, Powell too prepared a letter to Blackmun, saying 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." Powell noted how "the women who most need the benefit of liberalized abortion laws are likely to be young, inexperienced, unsure, frightened and perhaps unmarried," and observed 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." Powell closed by again mentioning that he was "favorably impressed" with how Jon Newman had "identified viability as the critical time from the viewpoint of the state." Powell left his letter to Blackmun unsent, perhaps in the belief that Marshall's and Brennan's expressions of support had already made the point, or perhaps because he reiterated his views face-to-face. In any event, on December 15 Harry Blackmun notified all of his colleagues that he would be revising his Roe and Doe opinions in the manner recommended, and six days later, new all-but-final drafts were distributed as well. History has correctly recorded Harry Blackmun as the hardworking author of Roe v. Wade, but until now neither the crucial influence of Lewis Powell--nor that of Larry Hammond and Jon Newman has--been fully appreciated."

"Blackmun's clerks played substantial roles in producing his opinions as early as 1971, when the landmark abortion cases Roe v. Wade and Doe v. Bolton first came before the court."

"BLACKMUN'S AUTHORSHIP OF ROE V. WADE and Doe v. Bolton became the signature event of his 24 years on the court. The pair of cases challenging anti-abortion statutes in Texas and Georgia was decided during Blackmun's third term as a justice. Yet even then, Blackmun allowed his clerks to play influential roles not only in drafting the two opinions but also in honing the constitutional standards that made the two cases famous. Even before Roe and Doe arrived at the court, Blackmun was clearly comfortable with interpreting the Constitution to protect women's access to abortion. Writing to himself just prior to the oral argument in United States v. Vuitch, the court's first abortion case, in January 1971, Blackmun noted that the 1965 case Griswold v. Connecticut, which upheld the right of married couples to use contraceptives, and the 1969 case Stanley v. Georgia, which protected the possession of pornography in the home, "afford potent precedence in the privacy field. I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented by the present case." At conference, however, the justices decided Vuitch on grounds that allowed them to avoid the constitutional privacy issue. When Blackmun began preparing for Roe's initial oral argument in December 1971, his notes about the case reiterated his comments about Vuitch. "A fundamental personal liberty is involved here—right to receive medical care," he wrote. "Much precedent for this sort of thing—Griswold et al." After argument and the justices' private conference, Burger assigned Blackmun to write the opinions in Roe and Doe."

"Law clerk John T. Rich, who now practices law in Washington, D.C., prepared a long memo for Blackmun summarizing the issues in Roe. After a first draft of the Roe opinion was completed in mid-May 1972, Rich gave Blackmun a forceful, 13-page list of recommended changes. Doe was the responsibility of Rich's co-clerk, George Frampton, who is now a New York lawyer. By mid-May, Frampton had a draft opinion ready for distribution. While not as assertive as Rich, Frampton nonetheless told Blackmun that the opinion should more clearly state that it was affirming the lower court's decision to void several restrictions on abortion in the Georgia statute. "I feel even more strongly now that you should make explicit what the opinion presupposes by approving the decision of the court below as far as it went." But both drafts were held in abeyance after a majority of the court, at Blackmun's urging, scheduled Roe and Doe for reargument during the following term, when a full bench that included Powell and William Rehnquist—who had joined the court after the initial arguments—could decide the two cases."

"Over the summer, while Blackmun visited the Mayo Clinic's library in Rochester, Minn., to research the medical aspects of abortion, Rich and Frampton did substantial work on the draft opinions before their clerkships ended in early August. In mid-July, Frampton informed Blackmun that "after thinking about the overall structure of the opinions, John and I have concluded that there is a strong argument for leaving the Texas case to go off on vagueness," meaning that in Roe the court would void the Texas statute as too vague, and Doe would become the more constitutionally significant opinion. Frampton wanted the opinions to provide "a comprehensive prescription" for how states should revise their abortion laws, and on August 11, 1972, he sent Blackmun revised drafts of both Doe and Roe, as well as advice on strategy. I want to urge you again to circulate your revised draft before oral argument," Frampton wrote to Blackmun. "[I]t will nail down your keeping the assignment, it should influence questions and thinking at oral argument, and it might well influence voting. It will also put a premium on getting the cases handed down quickly. . . . Frampton also told Blackmun about an analytical distinction that would prove crucial in the final Roe and Doe opinions. "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," Frampton explained. "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, for various purposes; b) it has considerable analytic basis in terms of the state interest as I have articulated it. . . ." He also highlighted another addition. "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 confessed that, as to constitutional privacy analysis, "I would have liked to do more here, but I really didn't have time at the end," and he regretted the deficiency. "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 little more than one sentence plus a string cite in [the] text.""

"After the two cases were argued again in October 1972, Blackmun prepared for the conference, assuming that they would remain his responsibility. "I am revising and expanding the proposed opinions that commanded a majority," he jotted to himself. "I have a lot of personal investment," he added, and "It is not a happy assignment—[I] will be excoriated." The task of handling both Roe and Doe had passed to new law clerk Randall Bezanson, who now teaches law at the University of Iowa. In a November 29 memo to Blackmun, Bezanson questioned Frampton's selection of viability as the point at which the right to an abortion should be limited, a choice that Powell had also recommended. "By selecting viability," Bezanson asked Blackmun, "would you not be suggesting that prior to that point no limitations could be placed on abortions (except those permitted in your opinions as they now stand)." Bezanson then offered an analysis that decisively shaped how Roe would balance the woman's right and the state's interests throughout pregnancy: 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 6 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-á-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.*The majority opinions in Roe v. Wade and Doe v. Bolton came down on January 22, 1973, and owed a great amount of their substance and language to Frampton and Bezanson.* Yet what stands out most in the work of Blackmun's clerks on Roe and Doe is not the remarkable extent of their contributions, but the unusually assertive and forceful manner in which the clerks voiced their views to Blackmun. Although no one has reviewed every one of Blackmun's case file folders, the behavior of Blackmun's clerks in preparing the Roe and Doe decisions was the first significant example of conduct that formed a clear pattern after the mid-1980s."