Saturday, August 21, 2004

From the Blackmun Papers: The Day Roe v. Wade was Overruled


Harry Blackmun's papers offer important behind-the-scenes details about how the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. Casey, as you may remember, was thought to be the case that would have overruled Roe but ended up reaffirming it in a watered-down version. The story has been told before by Edward Lazarus in his book Closed Chambers, and by David Garrow in a New York Times article on Justice Souter in 1994, but Blackmun's papers offer a valuable additional insights. Here is the story of what happened as best I can reconstruct it:

Casey was argued on April 22, 1992. At the conference following the argument, on April 24, 1992, there were five votes to uphold the challenged Pennsylvania statute in its entirety: Rehnquist, White, Scalia, Kennedy, and Thomas. Blackmun's notes state "To uphold we would not OR Akron & Thornburgh;" i.e., that it would not be necessary to overrule these cases from the 1980's in which a liberal majority had struck down similar abortion regulations under a test of strict scrutiny. This statement seems puzzling-- it's hard to see how these cases would be consistent with upholding the Pennsylvania statute. Edward Lazarus' book Closed Chambers suggests that Rehnquist said the opposite of what Blackmun's notes suggest-- the Akron and Thornburgh had to go, but that it might not be necessary to overrule Roe. It's possible that Rehnquist was just playing possum, arguing that the Court did not need to do much new here, so that he could cement a majority that included Sandra Day O'Connor and try to write an opinion that could command a Court.

Scalia agreed with Rehnquist, but he added that in his view abortion regulations need only pass a test of minimum rationality, a position Rehnquist had taken in his Webster opinion. Thomas also wanted to uphold the entire statute. Kennedy agreed with him. Kennedy, and not Rehnquist specifically wanted to overrule the two previous cases, Akron and Thornburgh, which had reaffirmed that abortion was a fundamental right and had subjected abortion regulations to strict scrutiny.

The remaining four Justices thought that some parts of the Pennsylvania statute had constitutional problems. Souter wanted to strike down the spousal notification provision. O'Connor agreed-- she thought the 3rd circuit decision, which had struck down only this provision, was basically right. Stevens and Blackmun wanted to strike down both the spousal notification provision and the 24 hour waiting period. Stevens called the latter "an insult" to women.

After the conference, it looked as if there was a 5-4 opinion to uphold the statute in its entirety, which would have effectively gutted Roe. Thus, on April 24, 1992, it appeared to the Justices that Roe v. Wade would finally be overruled.

Rehnquist assigned himself the majority opinion and circulated a draft on May 27, 1992. "We hold that all of the challenged provisions of the Pennsylvania statute are consistent with the United States Constitution," Rehnquist wrote. Although Roe involved criminalization of abortion rather than regulation of abortion, it was necessary to reconsider Roe. "Building on [Meyer and Pierce] we have long held that the term "liberty" includes a right to marry, [Loving]; a right to procreate, [Skinner v. Oklahoma]; and a right to use contraceptives. [Griswold, Eisenstadt]. But a reading of these opinions makes clear that they do not endorse any all-encompassing `right of privacy.' In particular, "the Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a `fundamental right' that could be abridged only in a manner which withstood `strict scrutiny.' Rehnquist cited Bowers v. Hardwick to support his view that the right of privacy should be narrowly construed because it had "little or no cognizable roots in the language or design of the Constitution." Henceforth, regulations of abortion need only meet a test of mere rationality. That is, "States may regulate abortion procedures in ways rationally related to a legitimate state interest." Since the preservation of potential life was a legitimate state interest, it followed that states could probably criminalize abortion as well, although Rehnquist did not say this directly.

After Blackmun read the first draft, he wrote in the margins: "WOW! Pretty extreme?"

But Rehnquist felt no need to be less extreme. He had five votes. But at this point his majority began to fall apart. The key actor was not Sandra Day O'Connor, but Anthony Kennedy. Two days after the first draft was circulated, on April 29, 1992, Kennedy sent Blackmun a short handwritten note:

Dear Harry:

I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.

If today is not convenient, I will be here tomorrow. Please give me a call when you are free.



Blackmun took notes of the meeting on April 30, 1992. (Blackmun's notes say the meeting was 3-30-92, but he almost certainly meant 4-30-92, because his notes are stapled to the Kennedy letter and the oral argument in Casey didn't occur until April 22nd.) Blackmun's notes refer to "The 3--" i.e., that Kennedy was reporting the views of a troika of Justices who had been secretly meeting together to discuss Casey. According to Kennedy, Roe was "sound," but that the trimester system would have to go, and he also wanted to overrule Akron and Thornburgh, which subjected abortion regulations to strict scrutiny. The troika wanted to uphold most of the Pennsylvania statute but would vote to strike down the spousal notification law. David Souter, who cared a great deal about respect for precedent, would explain why respect for precedent counseled against overruling Roe. The 3 would also adopt O'Connor's "undue burden" test, first announced in her dissent in Akron.

Blackmun wrote the initials of the Justices in a row, and drew brackets around the troika of Kennedy, O'Connor, and Souter. He now saw that there were five votes for upholding Roe-- the troika, himself, and Stevens. At the bottom of the page, Blackmun wrote: "AMK delegated by O and D?" i.e., had Kennedy been delegated by the other two Justices to make these representations? It soon became clear that he had.

On June 8, 1992, O'Connor, Kennedy and Souter circulated the first draft of their Joint Opinion. It was not circulated as the lead opinion, but rather was labeled "concurring in the judgment in part and dissenting in part." On page 3, the Justices wrote: "After consideration of the fundamental constitutional questions it presents, principles of institutional integrity and stare decisis lead us to conclude this: the essential holding of Roe v. Wade once again should be endorsed, continued, and reaffirmed." When Blackmun read this sentence, he underlined the words "endorsed," "continued" and "reaffirmed," and wrote in the margin "this OK." As Kennedy had suggested, the joint opinion adopted O'Connor's undue burden test: "the State cannot assert its interest in promoting fetal life in a way that imposes any real obstacle to the practical ability of the woman to have an abortion procedure before viability" but "the State can enact reasonable measures to assure that the woman's decision is cautious, mature, and informed."

On June 17, 1992, Rehnquist circulated a second draft of his majority opinion. It was still titled the Opinion of the Court, but it noted the existence of a "Joint Opinion" written by Kennedy, O'Connor, and Souter, and rejected its arguments for upholding Roe based on stare decisis:"We have stated above our belief that the Constitution does not subject state abortion regulations to any type of heightened scrutiny. Accordingly, we think that the correct analysis is that set forth by the plurality opinion in Webster. A woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but states may regulate abortion procedures in ways rationally related to a legitimate state interest." Rehnquist still believed he could keep a majority together. But events were moving against him.

The next day, on June 18th, Stevens wrote to the troika. He and Blackmun could join in the first three sections of their opinion, reaffirming Roe and striking down the spousal notification provisions, in effect making their views the opinion of the Court. In return, the troika only had to delete some sentences that criticized Roe and its trimester system from the first three sections and move them to later in the opinion. Stevens and Blackmun would join the first three parts of the opinion and write separate dissents addressing the remaining issues, including the 24 hour waiting period. Kennedy and O'Connor agreed the same day, and after some minor negotiations over language, they issued a second draft on June 22nd, now titled the "Opinion of the Court." Stevens joined on June 22nd, while Blackmun joined on June 24th. A third draft circulated on June 25th, 1992. The troika was in control.

On June 26th, Rehnquist circulated his 3rd draft. The opinion was now entitled "concurring in the judgment in part and dissenting in part." Rehnquist had lost his majority, but he tried to spin the meaning of the joint opinion: After arguing that Roe was wrong to recognize a fundamental right, he stated "The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER is not in outright disagreement with us to this point." The next day, however, Scalia, White, and Thomas had signed on, and Rehnquist was no longer in the mood to be conciliatory. In his fourth and final draft that sentence now read: "The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER cannot bring itself to say that Roe was correct as an original matter."

Rehnquist had wanted to overturn Roe before the 1992 election. If Bush won, he might retire; if Clinton won, the deed would already have been done. Now that Roe was still around, there was nothing left to do but show why the Joint Opinion's arguments made no sense.

Rehnquist had come ever so close to gaining his prize. But it had eluded him.

For now.


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