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Choosing a Chief Justice

Roe Ruling: More Than Its Author Intended

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

But Roe vs. Wade foreclosed this middle course -- for the states as well as for the court. It does not give states the room to adopt what might be a popular compromise: permitting abortions during the first three months of a pregnancy, but not afterward. Nor does it permit states to authorize only "medically necessary" abortions, a reform idea of the late 1960s.

How did Blackmun and the Supreme Court produce such a broad ruling on abortion, while professing to do no such thing?

Court scholars and law clerks from the Roe era say there is no single explanation. Some say Blackmun naively thought that doctors would perform abortions only for medical reasons.

"He was thinking of this in the medical framework of Rochester, Minn. He imagined abortions would be performed by a family physician or in a hospital," said historian David J. Garrow, the author of a scholarly history of the abortion-rights movement.

The justices did not foresee the full impact of the ruling or the backlash it would set off, said Georgetown University law professor Mark V. Tushnet, who was a clerk for Justice Thurgood Marshall when Roe was decided. They focused on striking down the Texas-type laws that outlawed all abortions, he said.

"All they wanted was to get those laws off the books," Tushnet said. "They were not thinking long-term with an overall vision."

In Burger's Footsteps

Blackmun made it to the Supreme Court because of his boyhood friend, Burger.

In 1969, President Richard Nixon chose Burger to be chief justice of the United States. A year later, after Nixon tried and failed to get two Southern judges confirmed, Burger suggested his old friend. Burger and Blackmun were soon dubbed the "Minnesota Twins."

In June 1971, five justices (but neither Burger nor Blackmun) voted to hear abortion cases from Texas and Georgia.

When those cases came before the court in December 1971, only seven justices were seated. Justices Hugo Black and John Marshall Harlan, both ailing and near death, had suddenly retired. Their 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.

At the court's private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were "health problems."

Blackmun voiced disdain for feminists who said women deserved control over their bodies. "There is no absolute right to do with one's body what you like," he said. But he agreed that the Texas law was extreme and said it did "not go far enough to protect doctors."

The Georgia law was much better, the justices said, except for a requirement that three doctors approve an abortion.

Days later, the liberal justices were irked to receive a memo from Burger saying he had chosen Blackmun to write both opinions. With little guidance from colleagues, Blackmun and his clerks began research.

Meanwhile, the court turned its attention to the death penalty. Capital punishment had been under attack, and in January 1972 the full court voted 5 to 4 to strike it down.

The ruling, handed down in June, described the states' death penalty laws as arbitrary; they sometimes treated rapists the same way they treated mass murderers. But it left room for states to try again. Most states rewrote laws to focus on those thought most deserving of execution. By 1976, the high court had upheld the revised laws and restored capital punishment.

Had abortion cases followed a similar course, the court would have required states to reform their laws to give more leeway to doctors and to pregnant women. But it would have also left states the power to prohibit abortions in some circumstances.

Blackmun's final opinion left no room for prohibitions on abortion. That was not apparent in the spring of 1972, however.

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.

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