by Peter Irons
The next day, Douglas was astounded to receive Burger’s assignment list, handing the abortion opinions to Blackmun. Burger had no right to assign the cases to anyone, and Douglas flew into a rage. He drafted a blistering memo, noting that Burger had assigned not one but four cases in which he voted with the minority Douglas informed his colleagues that he would assign these cases. Burger professed surprise in his reply, conceding he was wrong in two cases. But he claimed the positions of several justices on the abortion cases had been unclear. “I therefore marked down no votes and said this was a case that would have to stand or fall on the writing, when it was done,” Burger explained. “That is still my view of how to handle these two sensitive cases, which, I might add, are quite probable candidates for reargument.”
Douglas suspected that Burger made his statement about reargument with an eye on the political calendar. If Blackmun, a notoriously slow writer, kept the assignment, the opinions would probably not be ready until the Court’s term ended in June 1972. President Nixon was already running for reelection and clearly wanted to avoid being dragged into the abortion debate. Burger could—and did—argue that the Court’s decision would have more weight if all nine justices voted. Reargument would allow Justices Powell and Rehnquist, whose confirmation hearings were underway, to participate in the abortion cases. This struck Douglas as disingenuous; he now counted five votes for striking down the abortion laws—himself, Brennan, Marshall, Stewart, and Blackmun. Barring an unforeseen switch, Powell’s and Rehnquist’s votes could not change the final outcome, but Douglas feared that Burger would pressure Blackmun to switch his vote.
Blackmun had secluded himself in the justices’ private library, plowing through stacks of lawbooks and medical texts. He finally circulated a draft opinion in late May 1972. A few days later, Burger visited Blackmun’s office and stayed for hours. Blackmun said nothing to his law clerks after Burger left. On June 3, Blackmun sent his colleagues a memo withdrawing his draft opinion. It was too late in the term to complete it and give any dissenters time to draft their own opinions, he explained. He felt the abortion cases should be reargued in the next term. Douglas exploded once more. He wrote a blunt memo to his colleagues. “This is an election year,” he said. “Both political parties have made abortion an issue. What the parties say or do is none of our business. We sit here not. to make the path of any candidate easier or more difficult. We decide questions only on their constitutional merits. To prolong these abortion cases into the next election would in the eyes of many be a political gesture unworthy of the Court.” Douglas threatened to publish his statement if the justices voted for reargument.
Brennan and Blackmun pleaded with Douglas to reconsider. Their majority was solid, and it really was too late in the term to polish all the opinions. Douglas finally relented. On June 26, 1972, the Court’s clerk sent a letter to Sarah Weddington: “This case is restored to the calendar for reargument. Mr. Justice Douglas dissents.” But there was no dissent attached to the letter. Abortion would not become an issue in the presidential campaigns. Before the election in November, neither Richard Nixon nor his Democratic opponent, Senator George McGovern, made any mention of abortion.
The Supreme Court heard a second round of arguments in Roe v. Wade on October 11, 1972. Two new justices now sat behind the mahogany bench, Lewis Powell to the left of the lawyers’ podium and William Rehnquist on the right. Their seating followed Court tradition, but Rehnquist was far to the right of his new colleagues in politics. He and Powell had been nominated together by President Nixon to fill the seats vacated in October 1971 by Hugo Black and John Harlan. Back in 1952, an older, hugely popular moderate politician—Dwight Eisenhower—had picked a young, highly partisan conservative—Richard Nixon—as his vice-presidential candidate. Although his hard-nosed political tactics had created several crises in Nixon’s short career, he swept into office on Ike’s coattails. Perhaps with this example in mind, Nixon filled Black’s and Harlan’s seats with an older, popular moderate and a young, partisan conservative. Nixon’s strategy worked; although Rehnquist’s hard-line political views cost him Senate votes, he rode to confirmation on Powell’s coattails.
Lewis Powell’s ancestors had landed in Virginia in 1607, three centuries before his birth in 1907. He graduated from Washington and Lee University’s law school in 1931 and spent the next year in graduate law study at Harvard before returning to Richmond. During forty years in corporate practice, Powell devoted many hours to public service as chairman of both the Richmond and Virginia school boards. He declined Nixon’s offer in 1969 to replace Abe Fortas, saying he was too old at sixty-two, but Hugo Black’s death had left the Court’s “southern seat” vacant. Besides, Powell’s rejection of Nixon’s first offer led to the Haynsworth and Carswell debacles, and accepting the second offer gave Powell the chance to repair the South’s damaged reputation.
The only senator who voted against Powell, Fred Harris of Oklahoma, called him “an elitist who has never shown any deep feeling for little people.” Harris was partly right. Powell did belong to elite Richmond society; but he worked hard after the Brown decision to ease the integration of Virginia’s schools, and he supported legal services for the poor as president of the American Bar Association. Motivated less by deep feeling than noblesse oblige, Powell nonetheless displayed some concern for such “little people” as black children and welfare clients. Few of his law clients, however, were black or poor; Powell’s firm represented Virginia’s leading banks, insurance companies, and tobacco manufacturers. Announcing his nomination, a grateful Nixon told reporters that Powell “has received virtually every honor the legal profession can bestow upon him.”
Nixon’s choice to fill John Harlan’s seat had not received many honors from the legal profession, although the president lauded William Rehnquist as “one of the finest legal minds in this Nation today.” He later confessed that “Rehnquist’s most attractive quality was his age; he was only forty-seven and could probably serve on the Court for twenty-five years.” Rehnquist passed that milestone in 1997, in his eleventh year as Chief Justice. During that quarter century, the self-described conservative “partisan” remained on the Court’s far right even after moving to the center seat in 1986. Rehnquist once said his political views “may have something to do with my childhood,” which began in 1924 in Shorewood, Wisconsin, a solidly Republican suburb of Milwaukee with leafy streets and several Lutheran churches. His father, whose parents came from Sweden, made a comfortable living as a wholesale paper salesman.
Rehnquist entered college in 1942, but dropped out to join the Army Air Corps, serving as a weather observer in North Africa. He finished his studies in California, receiving undergraduate and law degrees from Stanford University; like Powell, he also did graduate work at Harvard Law School. Rehnquist always relished political debate and sent many letters to newspapers. During college, he argued in the Stanford Daily that “moral standards are incapable of being rationally demonstrated” and that “one personal conviction is no better than another.” He never strayed from his position of moral neutrality. Rehnquist clerked after law school for Supreme Court justice Robert Jackson, during the year the Court first considered the Browncase. One memorandum he wrote for Jackson in 1953 surfaced during his Senate confirmation hearings in 1971. “I think Plessy v. Ferguson was right and should be reaffirmed,” Rehnquist had written, adding that the Court should not consider “the moral wrongness” of school segregation. His later claim that these words reflected Jackson’s thoughts and not his own prompted outraged denials by people who had worked closely with Jackson, who joined the Court’s rejection of Plessy in the Brown case.
After his Supreme Court clerkship, Rehnquist practiced real-estate law and Republican politics in Phoenix, Arizona, working in Barry Goldwater’s presidential campaign in 1964. That same year, he opposed the city’s public accommodations law, defending in a letter to the Arizona Republic “the historic right of the owne
r of a drug store, lunch counter, or theater to choose his own customers.” Three years later, he opposed a Phoenix school integration plan in another letter to the Republic, writing that “we are no more dedicated to an ‘integrated’ society than we are to a ‘segregated’ society.” These opinions helped Rehnquist win a job in the Nixon administration, as director of the Justice Department’s Office of Legal Counsel. In congressional testimony and public speeches, he defended “national security” wiretapping, the mass arrest of Vietnam War protesters, and the “preventive detention” of criminal suspects without bail. Democratic senators questioned his political views but not his legal skills, and Rehnquist won confirmation by a vote of sixty-eight to twenty-six.
The second round of arguments in Roe v. Wade took place before a full bench on October 11, 1972. Without knowing the score from the first round, the lawyers on both sides tried their best. Sarah Weddington, who had stumbled on the constitutional issues during her first argument, spent months polishing her second effort. She conceded at the outset that the Constitution did not provide, in clear words, “the right to an abortion.” But it also did not provide other “very basic rights” that the Court had recognized. Weddington pointed the justices to “a great body of precedent” that supported abortion rights, rattling off case names like an eager law student. She included all the cases Douglas had cited in his Griswold opinion, adding that decision to her list. These cases “in the areas of marriage, sex, contraception, procreation, childbearing, and education of children,” she asserted, all held that decisions in these fields “should be left to the determination of the individual.”
Weddington spoke largely without interruption, normally a sign that justices have already made up their minds. Her only tough question came from Byron White, who asked whether a fetus was a “person” under the Fourteenth Amendment. Weddington knew the next question without being asked: If the fetus was a “person” with constitutional rights, why would Texas not have a “compelling interest” in protecting its life? Unwilling to concede this point, she dodged White’s question, claiming that Texas “has not proved any compelling interest” in banning abortions. Potter Stewart helpfully offered Weddington an escape from White’s trap. “If it were established that an unborn fetus is a person,” he asked, “within the protection of the Fourteenth Amendment, you would have an almost impossible case here, would you not?” She missed the hint that she should say firmly that fetuses were not persons, the position Stewart had argued strongly to his colleagues. “I would have a very difficult case,” she answered.
Robert Flowers argued for Texas in the second round, replacing the hapless Jay Floyd at the podium. He seized on Sarah Weddington’s concession that fetal “personhood” might give the state a “compelling” interest in banning abortion. Flowers claimed that fetuses were persons in Texas. “We feel that this is the only question really that this Court has to answer,” he added confidently. But Flowers had climbed too far out on this shaky limb. “Do you know of any case anywhere,” Stewart inquired, “that held that an unborn fetus is a person within the meaning of the Fourteenth Amendment?” Flowers had none to offer. Justice White helpfully suggested that he move to a stronger branch. “You think the case is over for you?” he asked. “You’ve lost your case if the fetus or the embryo is not a person, is that it?” Flowers missed the hint that he should say no, and offer the Court a “compelling interest” to justify banning abortions. “Yes, sir, I would say so,” he answered. White tried again to help the befuddled lawyer. “You mean the state has no interest of its own that it can assert?” Flowers beamed with relief. “Oh, we have other interests, Your Honor. Preventing promiscity, say.” He mangled the word, but his linguistic slip made no difference. Even Daniel Webster, at his best could not have saved the Texas abortion law.
Sarah Weddington recalled her feelings that day. “I left the courtroom with the sense that the justices had already decided the cases—but. were not yet willing to tell us their decision.” They had decided the abortion cases, in fact, and opinions had already been drafted. But none of the justices liked the opinions they had read, and final votes had not been tallied. Harry Blackmun had spent most of the summer of 1972 in the Mayo Clinic library in Rochester, Minnesota, plowing through more medical texts. He returned to Washington that fall with a second draft of the opinion he had circulated in May. This draft, the fruits of his summer research, exhaustively recounted the history of abortion, from the Greeks and Romans in antiquity to the 1970 statement of the American Medical Association urging that states allow doctors to use their best medical judgment about abortion. Blackmun’s draft focused almost entirely on the doctor’s professional interests and largely ignored the pregnant woman’s personal concerns. He decided to withhold it from circulation until the justices held their conference after the second round of arguments.
Justices Brennan and Douglas had worried over the summer that Stewart might decide to uphold the abortion laws and that Powell might join him. They had already written off Rehnquist, and Burger and White appeared certain to sustain the statutes. What had been five votes against the laws in May 1972 looked very shaky in October. Brennan knew from Newark politics, however, not to concede the election before the ballots are counted. The justices cast their votes on October 12, 1972, the day after they listened to Sarah Weddington and Robert Flowers. Brennan and Douglas were delighted with the vote that followed Blackmun’s lengthy and emotional appeal to his colleagues, urging them to strike down the abortion laws. Stewart stuck with his earlier vote, and Powell joined to make a majority of six. Powell later told his law clerk that he could find no constitutional objection to abortion laws, but voted from his “gut” because he felt the laws were “atrocious.” Powell’s vote left Burger, White, and Rehnquist in dissent.
The conference vote, however, did not end debate on the abortion cases. Brennan and Douglas had many criticisms of Blackmun’s second draft, the most important that it did not place the “right to privacy” on any firm constitutional footing. They also felt that Blackmun had given the states too much power in allowing them to ban abortions after the point of fetal “viability,” when the fetus could live outside the womb. This generally occurs after six months of pregnancy but varies in each case, depending on fetal weight and other factors. Brennan and Douglas feared that states would define “viability” at the earliest possible time, pushing it back as medical science progressed in keeping fetuses alive, even if they could never become normal, healthy babies. Brennan put his criticisms into a forty-eight-page memo to Blackmun, carefully phrased as “suggestions” for improving his opinion. Less politely, Chief Justice Burger had told Blackmun he would “never” join an opinion that permitted “abortion on demand” before fetal viability.
Blackmun devised a plan to satisfy both critics, who came at him from opposite sides. Going back to his medical texts, Blackmun divided pregnancy into three roughly equal “trimesters” of twelve weeks. His purpose was to “balance” the pregnant woman’s right to abortion with the state’s interests in protecting her health and assuring that no “viable” fetus was aborted. During the first trimester, Blackmun placed no restrictions on abortion; decisions were solely up to the woman and her doctor. States could regulate abortion procedures during the second trimester, but only to protect the woman’s health. During the final trimester—the stage of fetal “viability” in most cases—states could prohibit abortions unless childbirth would endanger the woman’s life. His trimester scheme, Blackmun wrote in his final opinion, would protect the pregnant woman’s right to choose abortion over childbirth, but also leave “the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests” in maternal health and fetal viability.
To answer criticisms that his “right to privacy” had no constitutional anchor, Blackmun dusted off his lawbooks and dug out nine cases that went back to t
he nineteenth century. None dealt with abortion—Roe was, after all, the first direct challenge to abortion laws on constitutional grounds. Blackmun put some odd cases in his grab bag of precedent. One stemmed from a railroad case in which a Pullman berth fell on a women’s head; another involved a police search for fraudulent customs declarations; a third upheld a Georgia man’s right to own pornographic films; others dealt with wiretapping, police “stop and frisk” searches, and placing bets from telephone booths. They all, in some way, challenged governmental invasions of the “privacy” of individuals, even accused criminals. Some of these decisions ruled for the individual, some for the government. Some did not even mention the word “privacy.” Piling up his cases, Blackmun found in them the Court’s recognition “that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” Founded in the Fourteenth Amendment’s “concept of personal liberty,” Blackmun wrote in his final opinion, the right of privacy, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Blackmun worked hard during January 1973 to satisfy all his critics. He agreed to Stewart’s demand that his opinion make clear that fetuses were not “persons” under the Constitution. His trimester scheme met Brennan’s concern that allowing states to ban abortions after “viability” would give them too much latitude, as well as Burger’s fear that placing no restrictions on abortions before viability would give pregnant women too much control. Burger’s last-minute agreement made the final tally seven to two for striking down the Texas and Georgia laws. Blackmun sent his Roe opinion to the Court’s printshop in time for “Decision Day” on Monday, January 15, 1973. But the Chief Justice told Blackmun he wanted to write a short concurrence. “I’ll get it to you next week,” he promised on January 12. Blackmun now hoped to read his opinion on Wednesday, the 17th, but that day passed with nothing from Burger. Finally, on the 18th, a three-paragraph concurrence landed on Blackmun’s desk. The next Court session was scheduled for the following Monday, January 22. Blackmun fumed when he realized that Burger had deliberately stalled, knowing the abortion opinions could not come down before he administered the presidential oath to Richard Nixon on Saturday, January 20. Burger did not want Nixon to know, as he swore to uphold the Constitution, that the Chief justice had joined a decision granting women a constitutional right to have abortions, a practice the president had publicly deplored. All the justices knew that Burger had manipulated the abortion decisions to serve his personal interests.