As the country grapples with a radically changed abortion rights landscape now that Roe v. Wade has been struck down, it’s worth considering that Roe very nearly didn’t happen in the first place — at least not the way it’s governed the country for the past half-century.
How the Roe v. Wade ruling evolved: A behind-the-scenes visual tour
By James D. Robenalt
June 26, 2022 at 7:00 a.m. EDT
In fact, Roe almost wasn’t the defining abortion case at all.
The court took up two related abortion cases together in 1971. Roe v. Wade arose out of Texas and concerned a century-old law that outlawed abortion except “for the purpose of saving the life of the mother.” Doe v. Bolton was a challenge to a less stringent Georgia law, passed in 1968, that allowed exceptions for the health of the mother, rape and serious fetal abnormalities.
Justice Harry A. Blackmun, who was assigned to write the opinions in both cases, originally envisioned Doe v. Bolton as the lead case. He did not want to strike down the Texas law on any basis other than vagueness (what does it mean to “save the life of the mother”?) because he feared it would overturn most state abortion laws.
Here is what he wrote in a memo to the other justices on May 25, 1972, about his reasoning when he delivered a draft ruling on Doe v. Bolton:
This approach did not last: Roe would eventually be lifted into the lead position because it would establish a broader precedent. Still, Blackmun’s first draft of Doe v. Bolton was significant, because it showed how he dealt with the question of whether the Constitution guaranteed the right to an abortion. His analysis in this first draft would be carried into the Roe decision.
Two things loom large in Blackmun’s first draft of Doe v. Bolton.
First, he recognized a woman’s right to privacy based on cases, especially Griswold v. Connecticut, which in 1965 established a right to use contraception.
On the other hand, while Blackmun found a constitutional basis for a woman’s right to choose, that right was not absolute; it had to be balanced and measured against the rights of the potential fetal or embryonic “life.”
What this meant, theoretically, is that some line in a pregnancy had to be established when fetal rights could override a woman’s right to choose.
The following passage is the heart of the analysis. Blackmun recognized that life begins at some point for the fetus, but he felt it was not for the judiciary “at this point in the development of man’s knowledge” to speculate on what that point was.
It therefore would be left to individual states to draw lines.
Had this been the decision that came down, the political landscape would likely look very different, with the abortion question handled state by state under the general guidance that a woman did possess a fundamental constitutional right to decide how to deal with her pregnancy.
And in fact, this limited version, as articulated by Blackmun, was voted upon and agreed to by a majority of the seven justices who sat in oral argument. Justices William O. Douglas, William J. Brennan Jr., Thurgood Marshall and Potter Stewart told Blackmun they would back his opinion, establishing a five-vote majority.
Douglas, for one, felt the decisions should be announced “forthwith” in June 1972, as he wrote on June 13:
But there was a problem: Justices Lewis F. Powell Jr. and William H. Rehnquist, appointed by President Richard M. Nixon, had recently been seated, and Chief Justice Warren E. Burger felt the court should have the lawyers reargue the cases so Powell and Rehnquist could join in the vote. Perhaps Burger, who had been elevated to chief justice by Nixon, thought the new appointees would favor an even more limited right to abortion.
Blackmun agreed with Burger. He wrote to the justices on May 31:
Why did Blackmun want a do-over? It may be that he was pushed by Burger, his childhood friend. But he also showed a surprising indecisiveness about how to handle all the complex issues raised by the two state abortion statutes, writing in the same memo:
It would prove a fateful move.
Through the process of reargument and the circulation internally of multiple draft opinions, Roe v. Wade became the lead case, and the court began to draw a line dictating when, during the course of a pregnancy, the potential for fetal life could counterbalance a woman’s fundamental right to choose.
But it wouldn’t happen overnight.
Reargument was scheduled for Oct. 11, 1972. In preparation for the second argument, Powell’s law clerk, Larry Hammond, wrote a memo for Powell, dated Oct. 9:
Hammond had read a recent abortion opinion, Abele v. Markle, out of a Connecticut federal district court, which he thought might be helpful in the cases before the court. This is where a discussion of “viability” entered the debate. No litigant in Roe or Doe had suggested it, but the clerks, who spoke frequently, were starting to line up behind the idea.
This is how Hammond presented it to Powell (note the hurried misspelling of “viable”):
Following the second argument, Blackmun circulated a draft opinion that used the end of the first trimester as the line after which a state might prohibit abortions (though he called this line “arbitrary”):
In response, using Hammond’s memo, Powell wrote to Blackmun on Nov. 29 to lobby for a viability test, as opposed to a first-trimester rule.
“I am not sending a copy of this letter to other members of the Court,” Powell added.
Blackmun responded to Powell on Dec. 4:
With Blackmun vacillating about where to draw the line, he decided to consult the other justices on Powell’s “secret” opinion, writing on Dec. 11:
The influence of Hammond’s bench memo can be seen in the second page of this memo:
Douglas responded that he supported a first-trimester cutoff, but others began to shift to the viability standard.
Once again, the clerks seemed to have stepped in to influence the final result. Hammond wrote to Powell on the same day as Blackmun’s memo that he was surprised by Blackmun’s “whatever will command a majority” attitude.
And then he got to the heart of his concern: A first-trimester line might not allow sufficient time for young women who may not know of or be willing to acknowledge their pregnancy to access an abortion.
To Hammond, viability was the logical cutoff. (Note Powell’s definitive “Yes” in the margin.)
In the following days, Marshall and Brennan echoed the sentiments expressed by Hammond. Here, for example, is Marshall’s note on Dec. 12:
With this breakthrough, Blackmun began drafting what would become the final draft of Roe v. Wade, one based on a trimester analysis but ultimately holding that the state’s interest in protecting fetal life did not become “compelling” until viability.
This final draft circulated just before the court’s announcement of its decision on Jan. 22, 1973:
The viability rule is found in this final draft:
Concerned about public reaction, Blackmun wrote an announcement summarizing the abortion opinions, hoping it would keep the press “from going all the way off the deep end.”
His summary explained the court’s reasoning:
For all his hand-wringing, he ended up with exactly the headline he feared, as Time magazine scooped the court’s announcement (using information leaked by Hammond) under the headline “Abortion on demand.”
It would set up a 50-year crusade by abortion opponents to overturn Roe — one that has finally achieved its goal.