THE ROLL OF THE LOG

Behind the Scenes at Roe v. Wade
by MARTIN WISHNATSKY, Ph.D.
Posted June 8, 2010.

Justice Harry Blackmun’s first draft of his Roe v. Wade (2)  opinion, circulated to the Court in May 1972, struck down the Texas abortion statute based on “vagueness” with no mention of a right to privacy, no mention of trimesters, no discussion of the personhood of the unborn child, and none of the extensive paraphernalia of medical history that adorned the final opinion issued eight months later. He offered it for the consideration of his colleagues, saying, “This may or may not appeal to you.”(3)  “In any event,” he continued, “I am still flexible as to results, and I shall do my best to arrive at something that would command a court.”(4)

In other words, the reasoning does not matter as long as we arrive at the outcome of invalidating the law. It is all a matter of politics – to “command a court.” Blackmun’s first draft opinion in Roe poses numerous rhetorical questions about how to define saving the life of the mother. Beginning with the ponderous, “we encounter difficulties of great consequence under the vagueness challenge,” the Justice hurls a barrage of questions and distinctions at this simple, readily understood phrase until the wearied reader is eventually willing to concede that the law “is insufficiently informative to the physician to whom it purports to afford a measure of professional protection….” (1)

Most striking about Blackmun’s initial “vagueness” opinion is not the quality of the legal reasoning, but the knowledge that the artful composer could just as well have written a completely different set of words and music to arrive at the same finale, if called upon to do so.(1)  In his memo he admits as much—and eight months later actually does it. Is the Constitution no more than a smokescreen for achieving results that a sitting majority considers desirable? Is a U.S. Supreme Court opinion just a log roll covered with some legal sauce?(2)

Following up days later with a memo on Doe v. Bolton,(1)  the companion case from Georgia, Blackmun lays out what his reasoning “would accomplish” in its operation on the Georgia law and then concludes, “This, I should point out, does not mean that it may be performed in a facility that is not a hospital. Some of you may wish to take that step, too.”  How many Congressmen wish that they could legislate just by convincing four colleagues to go along with them, and not have to stand for election every two years in order, by comparison, to play a very minor part in public affairs?    
 

Blackmun asks his colleagues if they would like to legalize abortion mills somewhat like a host might ask his guests if they would prefer hot curry or mild. He did express some reservation about allowing abortions outside hospitals: “I have also seen abortion mills in operation and the general misery they have caused despite their being run by otherwise ‘competent’ technicians.” OK, gentlemen, what’s the vote on the abortion mills? All right, and what shall our reasoning be?

Blackmun, the Court’s newest justice at the time of the oral argument in December 1971, did not lag in the art of coalition-building. “It is because of . . . a hope, perhaps forlorn, that we might have a unanimous court in the Texas case, that I took the vagueness route.” (Justice White wrote a dissent to Blackmun’s “vagueness” opinion, noting that Jane Roe was not asking for an abortion because her life was in danger; thus, the entire opinion was irrelevant. She was applying for abortion on demand.)(1)  After receiving Blackmun’s draft, one of Justice Douglas’s clerks wrote a memo to him indicating that the Georgia requirement for confining abortions to hospitals might “manipulate away women’s rights” if a hospital had an anti-abortion policy. She suggested he take action to prevent “the prospect of thwarting the woman’s right.” A few days later, Justice Blackmun sent another memo reiterating that he had “prepared the Texas memorandum the way I did in the hope we might come near to agreement.” Echoing the desire of Justice Douglas’s clerk to promote easy access to abortion, he swallowed his qualms and proposed striking the hospital-only provision as unconstitutional.

Should we spell out—although it would then necessarily be dictum—just what aspects are controllable by the State and to what extent? For example, it has been suggested that upholding Georgia’s provision as to a licensed hospital should be held unconstitutional, and the Court should approve performance of an abortion in a ‘licensed medical facility.’(1)

Blackmun begins to turn the log “to see if we can come together on something” and avoid “numerous concurring and dissenting opinions.”(1)

Because Justices Lewis Powell and William Rehnquist joined the court in January 1972, subsequent to the original oral argument in Roe, the abortion cases were assigned for re-argument in fall 1972 before a full court. After the second argument, Blackmun, responding to input from his colleagues, embarked on the constitutional legerdemain that was to form the final opinion of Jan. 22, 1973. “You will observe,” he wrote in a Nov. 21, 1972, memo, “that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” To some of his colleagues, merely legalizing first trimester abortions seemed too limiting. Blackmun admitted that “I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) . . . . ”(2) Giving another turn to the log, he elaborated the policy considerations for keeping the states out of second trimester abortions as well:

There is a practical aspect, too, for I am sure that there are many pregnant women, particularly young girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.(1)

Is this the Supreme Court or Playboy magazine’s advisory board? “What we are talking about,” Blackmun continued, coolly preparing to authorize the grotesque dismemberment abortions of the second trimester, “is the interval from approximately 12 weeks to about 28 weeks.”(2)

Blackmun was not reluctant to jump from the first trimester to viability as the limiting point for state involvement, but first he threw out a political feeler: “I would be willing to recast the opinions at the later date, but I do not wish to do so if it would alienate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum.”(1)

The next day, Justice Thurgood Marshall wrote a final memo providing the final turn of the log that led to Roe. Marshall made no pretense to being a jurist; he just wanted to serve the cause of women’s liberation:

I am inclined to agree that drawing the line at viability accommodates the interests at stake better than drawing it at the end of the first trimester. Given the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion, I fear that the earlier date may not in practice serve the interests of those women, which your opinion seeks to serve.(1)

Then, he suggested the policy that cast Roe in final form:

If the opinion stated explicitly that, between the end of the first trimester and viability, state regulations directed at health and safety alone were permissible, I believe that those concerns would be adequately met.

The opinion would not seem as harsh to the states if they could at least regulate something in the second trimester, even though it would be of no practical effect. Blackmun gathered up the various comments, appealed again to “avoid excessive fractionation of the Court,” and expressed his “earnest hope” that “the cases may come down no later than the week of Jan. 15 to tie in with the convening of most state legislatures.”(1)

Is America now governed by Plato’s philosopher-kings with vestigial democratic elements in their nomination and confirmation? People like to think that the Constitution controls the court rather than merely being its ideological form of expression for policies formed without reference to its text. Roe v. Wade indicates otherwise.

“Commanding a court” was far more important to Blackmun than logical coherence or respect for the text of the Constitution. Roe v. Wade illustrates how the Court can produce an opinion that no one exactly designed or intended, but was instead a function of the internal politics of quasi-legislative log-rolling. Blackmun was new, very concerned to please his colleagues, and exceedingly industrious. He wanted to have as large a majority as possible. This was more important to him than what the opinion actually said. He knew his losses on the right to White and Rehnquist, but did not want to lose anyone on the left who might think the opinion did not go far enough. So, to satisfy the desires of the most extreme pro-abortion judge—Marshall—he let out the sheet further, and Roe sailed into view with a different policy for each trimester. The other pro-abortion justices had already signed on and did not complain, except for Burger whose concurrence expressed some fear that he had bought into more than he had anticipated.

The general public who received the Roe decision on Jan. 22, 1973, had no idea of its origin, that it had developed on a roll from Brennan to Blackmun to Marshall. They thought it had developed out of the Court’s understanding of the Constitution. But that was only window dressing. The philosopher-kings had spoken.

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NOTES
1. Wishnatsky, Class of 2012, holds a Ph.D. in Political Science from Harvard University.
2. 410 U.S. 113 (1973), argued Dec. 13, 1971, reargued Oct. 11, 1972, decided January 22, 1973.
3. Memorandum to the Conference, May 18, 1972, William Douglas Papers, Library of Congress.
4. Id.
5. By contrast, note the reasoning of U.S. District Judge Don Young in Steinberg v. Brown, 321 F.Supp. 741 (N.D. Ohio, 1970) on the same subject : “The words of the Ohio statute, taken in their ordinary meaning, have over a long period of years proved entirely adequate to inform the public, including both lay and professional people, of what is forbidden. The problem of the plaintiffs is not that they do not understand, but that basically they do not accept, its proscription.”
6. See People v. Belous, 458 P.2d 194 (Cal. 1969), for a California version of the same “vagueness” minuet. The words of the statute are mercilessly parsed into oblivion. But thank God for the fine dissent of Justice Sullivan. “There is no mystique enveloping the statute . . . yet the majority, by engaging in a process of elaborate and lavish analysis, transform that which is simple and lucid into something complex and arcane. . . . I cannot accept so tortured a conclusion wrenched from a statute which has had its roots in the law's historic solicitude for the priceless gift of life.” Id. at 210-12 (Sullivan, J., dissenting).
7. Soon after his May, 1970 confirmation, Blackmun received a letter from Chief Justice Burger warning him that to some of the justices the Constitution was little more than Play-Doh. “The largest—or one of the largest problems I see ahead is to draw away from the attitude that everything unwise or wicked is unconstitutional and that if we but search, we will find some long-hidden meaning in Due Process or Equal Protection or whatnot. All good ideas do not spring from the Constitution, and all dubious ones are not prohibited by it.” Linda Greenhouse, Becoming Justice Blackmun 52 (2005).
8. 410 U.S. 179 (1973).
9. Memo to the Conference, May 25, 1972.
10. Chief Justice Burger, in a memo to Justice Douglas, revealed just how crass the opinion-making had become. He had assigned an opinion to Douglas based on discussion in conference and a majority sentiment for it. Burger describes what happened: “You then circulated an opinion on a totally different theory. When this did not command additional votes, you again changed theory and came out with a third position . . . that the Court adopted.” Burger memo of July 27, 1972.
11.   Memo to the Conference, May 31, 1972.
12. Memo of May 18, 1972, supra at n.1
13. Memo to the Conference, Dec. 11, 1972.
14. Id.
15. The previous spring Justice Brennan had given a first turn to the log when he urged Blackmun to jettison vagueness and build a majority on “the core issue” of a right to abortion “within some limited time after conception.” Brennan memo to Blackmun, May 18, 1972. The log was now beginning to spin faster, as the limits expanded.
16. Id.
17. Memo of Marshall to Blackmun, Dec. 12, 1972.
18. Memo to the Conference, Dec. 15, 1972.