"Douglas steadfastly resisted reargument. Matters dragged on nonetheless and by mid-May, 1972, Justice Blackmun tried to rid the Court of the issue on procedural grounds -- namely, that the Texas statute was too vague to be enforced. He wrote: "I think that [vagueness] would be all that is necessary for disposition of the case, and that we need not get into the more complex Ninth Amendment issue." [Memorandum to Conference from Harry Blackmun, dated May 18, 1972]. This did not suit Justice Douglas, who argued that there were at least 4 votes [enough for a majority on an understaffed Court] that "an abortion [may] be performed by a licensed physician within a limited time after conception." (Letter from William O. Douglas to Harry Blackmun, dated May 19, 1972]. Douglas must have talked with Justice Brennan, because at about the same time Brennan by letter gives his support for the abortion proposition in almost identical language; namely, that "an abortion be performed by a licensed physician within some limited time after conception." [Letter from William Brennan to Harry Blackmun, dated May 18, 19721. Several things are striking about this internal correspondence beyond, of course, Justice Blackmun's change of posture from assigned draftsman to abortion advocate and the overall bewilderment of the Court after the case was first argued. First, there was considerable internal pressure to get a decision, perhaps before new members of the Court might change the outcome. [Nixon appointees' Lewis Powell and William Rehnquist replaced Black and Harlan; as it later turned out, Powell and Rehnquist split over the issue]. Douglas, in particular, seemed especially agitated to push the opinions out, writing "I feel very strongly that [Roe and Doe] should not be reargued. . . I hope the 5 can agree to get the cases down this Term, so that we can spend our energies next Term on other matters." [Letter from William O. Douglas to Harry Blackmun, dated May 31, 1972]. Second, the internal correspondence is almost completely devoid of what one could call constitutional argument. Instead of a careful examination of the common law or argumentation premised upon the textual provisions of the Constitutional document, there is merely vote counting and assertion. Third, taking Justices Douglas and Brennan at their word, the initial 4-person majority envisioned only a very narrowly-worded abortion privilege -- one that would be confined to a limited time after conception. The last point is particularly striking in light of President Clinton's insupportable claim and recent veto that the abortion license formulated by the Court extends even to the most graphically hideous procedure and to the moment of birth."
January 1, 1970
https://en.wikiquote.org/wiki/Roe_v._Wade