The Day Roe Was Overruled-- The Prequel

JB

My previous post discussed how Roe was almost overruled in Casey. This post explains why Roe was not overruled in Webster v. Reproductive Health Services in 1989, after Justices Scalia and Kennedy joined the Court. The short answer is that Scalia and O'Connor could not agree on a common solution, and Chief Justice Rehnquist was unable to exert sufficient diplomacy to come up with a working majority. This story has been told before in Edward Lazarus's Closed Chambers (he clerked for Blackmun during this term), but the Blackmun papers offer some new insights into what happened.

Webster was argued April 26th, 1989 and decided July 3d, 1989. On April 28th, the Court met in conference to discuss the case. This conference was particularly important because it was the first time that the two newest Justices, Scalia and Kennedy, would announce their views on Roe v. Wade. Blackmun's notes indicated that there were five votes to uphold the Missouri statute in its entirety: Chief Justice Rehnquist, Justice White, Justice O'Connor, Justice Scalia, and Justice Kennedy, but they wanted to do so for different reasons.

Chief Justice Rehnquist wanted to reverse the lower court and uphold the Missouri law. He wanted to subject abortion regulations to a rational basis test, although he would stop short of saying that outright criminalization of abortion as in the original Texas statute "is now OK." White was basically in agreement-- he would uphold the Missouri statute.

Justice Brennan would have affirmed the lower court and struck down the Missouri statute. Roe was "correct" he said. It involved "[a] fundamental right." Marshall agreed. He would uphold what lower court did across the board. Blackmun also agreed, although his notes also indicate he might reverse on the preamble.

Stevens wanted to uphold some parts and strike down others. The "Admin[istration] did us a disservice by raising t[he] issue" of overruling Roe. He might agree with Rehnquist that the preamble to the Missouri statute-- stating that life begins at conception-- presented no problems because it had no legal effect.

O'Connor's views of Roe had not changed. I "[a]dhere to what I have written," she said. She would "recognize a valid st[ate] interest" in potential life throughout the pregnancy. She would not "reject Griswold and Eisenstadt," and would go no further than this.

Scalia spoke next: "I may have t[o] confront Roe," he said. "I just disagree with it." "We [should] set it aside when we can." The problem would get "no better as time goes on," although perhaps the Court "need n[ot] reach the issue here."

Kennedy wanted to uphold the testing requirements, which he thought were "probably invalid under Roe," and he wanted to "cut back on this." "I taught [Roe] for ten years," Kennedy remarked. "On[] pure stare decisis [grounds I] would leave [it] alone," he said, "[b]ut [it] continues to do damage to the Court, [to] the institution of judicial review, and [to the] conception of the judge's proper position and role." Kennedy would use the Due Process Clause, but not recognize the "fundamental rights of women." He would "[r]eturn this debate to the democratic process. It will protect the rights of young women." Kennedy wanted to reach the merits only after a discussion of the "methodology and structure of Roe."

By the end of the conference, there were five solid votes for upholding the Missouri statute. This included four votes for gutting or overruling Roe: Rehnquist, White, Scalia, and Kennedy. O'Connor, by contrast, wanted to use her "undue burden" test. Brennan and Marshall wanted to strike down the challenged provisions across the board, while Blackmun and Stevens wanted to strike down parts.

Rehnquist assigned himself the majority opinion. He hoped to write something that would bring O'Connor into the fold. He circulated his first draft on May 25th, styled as the Opinion of the Court. It rejected Roe's trimester system and the cutoff at viability, and held that abortion regulations were permissible if the state's regulation "reasonably furthers the state's interest in protecting potential human life." "To the extent indicated in our opinion, we modify and narrow Roe and succeeding cases."

Rehnquist's approach was clever, but it fooled no one. It was obvious to all that the Chief Justice had just overruled Roe without saying so. On May 30th, Stevens sent him a letter making precisely this point. Rehnquist had announced what was effectively a test of minimum rationality for all abortion regulations:

If a simple showing that a state regulation "reasonably furthers the state interest in protecting potential human life" is enough to justify an abortion regulation, the woman's interest in making the abortion decision apparently is given no weight at all. A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test. Because the test really rejects Roe v. Wade in its entirety, I would think that it would be much better for the Court, as an institution, to do so forthrightly rather than indirectly with a bombshell first introduced at the end of its opinion.

. . . .

As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.

Respectfully,

John

Rehnquist did not worry too much about Stevens, who was not going to vote with him anyway. The real problem was O'Connor. By choosing a test of minimum rationality, he had rejected not only Roe v. Wade but also O'Connor's "undue burden" test. Perhaps he hoped that O'Connor would go along, but she refused to budge. She circulated the second draft of her views on June 26, now styled "concurring and concurring in the judgment in part and dissenting in part."

The next day, Rehnquist submitted his fourth draft, still as the Opinion of the Court. Perhaps he hoped he could still keep his majority together. But the day after that, on the 28th, Blackmun noted in the margins of the second draft of his dissent that the "majority" was now a "plurality." At this point, Scalia jumped ship and wrote a separate opinion arguing that Roe should be overruled. Apparently, Scalia had gotten over his the initial reluctance to confront Roe that he had expressed at the April 28th conference.

One might well ask why Rehnquist didn't write an opinion that rejected the strict scrutiny language of Roe, Akron, and Thornburgh and simply said that the Court would decide whether rational basis or undue burden applied in the next case? Perhaps this might have mollified O'Connor, but it would have lost Scalia, who would only join an opinion that overruled Roe or treated it as a dead letter. In the end, neither Scalia nor O'Connor joined his opinion treating Roe as a rational basis case. Rehnquist discovered that he had been too clever for his own good.