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Choosing a Chief Justice

Roe Ruling: More Than Its Author Intended

September 14, 2005|David G. Savage | Times Staff Writer

WASHINGTON — In mid-1971, the Supreme Court agreed for the first time to hear a constitutional challenge to the long-standing state laws limiting abortion. Its decision to do so reverberates today.

At that time, Texas and 30 other states had laws, dating from the 19th century, that made an abortion a crime unless it was performed to save the mother's life.

Georgia, like California, had revised its laws in the late 1960s to permit abortion in specific circumstances: if the mother's health was endangered, if the pregnancy was caused by rape or if the fetus had a severe defect.

The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge.

He believed that doctors needed to have leeway to do medically necessary abortions. In the court's first private conference on the issue, he described Georgia's law as "a fine statute [that] strikes a balance that is fair."

Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation's abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right.

That opinion, in the case of Roe vs. Wade, remains the court's most disputed decision of recent decades. By abruptly voiding all laws against abortion, it galvanized a powerful antiabortion movement that has transformed American politics.

It also dominates public debate over the court and its future. The Senate confirmation hearing for Judge John G. Roberts Jr., like those of all recent nominees, is focusing on one question: Will he vote to uphold or to reverse Roe vs. Wade?

Blackmun's Story

Last year, on the fifth anniversary of Blackmun's death, the Library of Congress opened his papers to the public. His thick files on the abortion cases tell the little-known story of how Roe vs. Wade came to be. It is the story of a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them.

It is also the story of a sometimes rudderless court led by Chief Justice Warren Burger. 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."

In reality, the court did just that.

Blackmun had said that abortion "must be left to the medical judgment of the pregnant woman's attending physician." So long as doctors were willing to perform abortions -- and clinics soon opened solely to do so -- the court's ruling said they could not be restricted from doing so, at least through the first six months of pregnancy.

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. 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.

Legal scholars have long pointed to the shaky constitutional basis for a right to abortion. Blackmun referred to the 14th Amendment, which says that a state may not "deprive any person of life, liberty or property, without due process of law."

In earlier opinions, the court had said that liberty included the concept of personal privacy. "This right to privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," Blackmun declared.

Earlier this year, 11 legal scholars, led by Yale's Jack Balkin, tried to write a better opinion. Their book of essays, "What Roe v. Wade Should Have Said," proposed several alternatives, such as saying sexual equality for women required a right to abortion.

Far less attention has focused on the all-or-nothing nature of the Roe vs. Wade ruling.

Today, as in the early 1970s, the American public appears to have decidedly mixed views on abortion. In a Gallup poll in May, for instance, only 23% of those surveyed said abortion should be "legal under any circumstances," the rule set by Roe vs. Wade.

Only 22% said abortion should be "illegal in all circumstances," the rule that could take effect in many states if the Supreme Court were to overturn Roe vs. Wade.

The largest group -- 53% -- said abortion should be "legal only under certain circumstances."

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