by Bob Woodward
After 24 weeks (third trimester); state interest
arises to protect the potential life of the fetus.
This formula had the effect of somewhat limiting abortions in the second trimester. But eliminating viability as the dividing point, Brennan's worry, guaranteed that medical science could not keep reducing the time period during which abortions would be legally available.
Marshall was not happy with Blackmun's proposal. It was too rigid. Many women, particularly the poor and undereducated, would probably not get in touch with a doctor until some time after the first 12 weeks. A woman in a rural town might not have access to a doctor until later in pregnancy. And according to. the Blackmun proposal, the states could effectively ban abortions in the 12-to-24-week period under the guise of protecting the woman's health. Marhsall preferred Blackmun's original linkage to viability. If viability were the cut-off point, it would better protect the rural poor. Clearly, viability meant one thing in Boston, where there were fancy doctors and hospitals. There, a fetus might be sustained after only a few months. But in rural areas with no hospitals and few, if any, doctors, viability was probably close to full-term, or late in the third trimester.
Marshall presented all this to Blackmun in a memo.
Blackmun respected Marshall's point of view. Marshall clearly knew a lot about many real world problems that Blackmun would never see. He incorporated all of Marshall's suggestions. His new draft specified:
I. For the stage up to "approximately" the end of the first trimester, abortions would be left to the medical judgment of the doctor.
For the stage after "approximately" the end of the first trimester, abortion procedures could be regulated to protect the woman's health.
For the stage after '"viability," abortions could be regulated or even prohibited, to protect the fetus.
The clerks in most chambers were surprised to see the" Justices, particularly Blackmun, so openly brokering their decision like a group of legislators. There was a certain reasonableness to the draft, some of them thought, but it derived more from medical and social policy than from constitutional law. There was something embarrassing and dishonest about this whole process. It left the Court claiming that the Constitution drew certain lines at trimesters and viability. The Court was going to make a medical policy and force it on the states. As a practical matter, it was not a bad solution. As a constitutional matter, it was absurd. The draft was referred to by some clerks as "Harry's abortion."
Stewart had one more change that he insisted on before he would join the opinion. It was imperative that they say more clearly that a fetus was not—as far as the Fourteenth Amendment was concerned—a person. If the fetus were a person, it had rights protected by the Constitution, including "life, liberty and property." Then the Court would be saying that a woman's rights outweighed those of the fetus. Weighing two sets of rights would be dangerous. The Court would be far better off with only one set of rights to protect. Stewart was certain that in legal terms a fetus was not a person. No previous case had held so. States conceded that, where the mother's life was at stake, a fetus had no rights. When the Fourteenth Amendment was passed in 1868, abortions were common enough to suggest that the state legislatures that had ratified the Amendment did not consider fetuses to have rights.
Blackmun did not disagree, but he felt the point was implicit in the opinion. Why expand it and stir up trouble?
Stewart was insistent, and Blackmun finally agreed to say clearly that a fetus was not a person.
After he had joined Blackmun's opinion, Stewart still wanted to add his own concurrence. Unlike Douglas, he was not inclined to write separate opinions spelling out small, technical disagreements with the majority. Stewart often joined inadequate opinions—"junk," he once called them—believing that this was a vital part of the compromising process. It also left him more time to write his own majority opinions.
But the Blackmun opinion lacked an explicit constitutional foundation for the abortion ruling. In a middle section providing his legal reasoning, Blackmun had brought the broadest arguments against restrictive abortion laws. He had written a sweeping general conclusion that the basis for lifting the restrictions could be found in the Ninth and Fourteenth, even in the First Amendment, and that it was implied in a series of privacy cases, ranging from the 1965 Connecticut contraceptive case to the previous term's contraceptive case so carefully tailored by Brennan (Eisenstadt v. Baird).
"Zones of privacy," Blackmun had written, do exist "under the Constitution." Stewart could not fully accept that. It was too broad. It was precisely the cause of his dissent in the 1965 Connecticut contraceptive case and of his hesitancy the previous year in Eisenstadt. He wanted to identify the part of the Constitution that conferred the freedom to have abortions during the early months of pregnancy. Stewart believed that a woman's right to an abortion in the early months was a "liberty" protected under the due process clause of the Fourteenth Amendment. But that approach carried with it historical baggage that Stewart would rather avoid.
In the 1930s the Court had used the clause to strike down key New Deal legislation. Since "liberty" could be construed to mean anything that five Justices agreed should be protected, critics charged that the Court had become a superlegislature, substituting its judgment for that of elected legislators. This approach, called "substantive due process" (to differentiate it from the more common procedural rights covered by due process), had been gradually discredited.
Since Stewart felt that "substantive due process" was the real basis for the Blackmun opinion, he believed that Blackmun was hesitant to admit it in the opinion. Stewart circulated his own concurrence, joining Blackmun's opinion, but adding his observations on the real roots of the opinion.
Reading Stewart's concurrence, Douglas found it laughable that Stewart, of all people, was concerned with constitutional purity. Douglas believed that Stewart's real motive in writing a concurrence was to put some distance between himself and Blackmun's opinion, which Stewart obviously thought was poorly reasoned and written.
Douglas shot back a memo arguing that Stewart had the history all wrong. This was not "substantive due process," Douglas said. He had been one of the earliest and most vociferous critics of that doctrine. The basis for the decision was clear. The Blackmun opinion was based on the right to privacy, Douglas countered.
Blackmun wanted no part-of the Stewart-Douglas debate. He was tired of compromising and dealing with everyone's gripes. This latest "sniping" was ridiculous. The important thing was that he already had six votes.
Given his gloomy expectations at the outset of the abortion debate, Douglas felt the Court had come a long way. The right to privacy was being given constitutional foundation in a major opinion. He dropped his debate with Stewart. It was a great victory, and Douglas wanted to add a concurring opinion underscoring its significance.
He decided to revise a lyrical concurrence that he had drafted the previous term about what he called the
customary, traditional, and time-honored rights, amenities, privileges and immunities that come within the sweep of "the Blessings of Liberty."
First is the autonomous control over the development and expression of one's intellect, interests, tastes and personality.
Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.
A clerk urged him to go beyond his discussion of a right to privacy and conclusively nail down a right to abortion. Douglas responded, "I'm only writing this for me." White shortened his dissent from the previous term. The states, not the courts, should decide the question of limits on abortion. Blackmun's trimester-and-viability scheme was pure legislation. "As an exercise of raw judicial power, the Court perhaps has authority to do what it does today," White wrote. But
he expressed doubts about a constitutional sanction that would allow a woman to get rid of an unwanted child on a "whim" or out of "caprice."
"The Court," White wrote, "apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries."
Rehnquist's dissent had little to do with abortion. As always, Rehnquist pushed his views on restricting federal court powers and the women's rights to bring these cases into court. First, he attacked the most basic element of the cases. No one had standing to bring these cases into court, he said. Assuming the women were pregnant when the suit was brought, they would be at least in their third trimester by the time the lower court decided the case. Since Blackmun's opinion held that states could deny abortions during the third trimester, there was no claim for the women to bring.
Rehnquist pointed out that in 1868, when the Fourteenth Amendment was adopted, at least thirty-six states or territories had laws on the books limiting abortions. It did not appear that the framers of the Fourteenth Amendment intended to bar the states from regulating abortions.
By early December, Blackmun's final draft had circulated. Stewart's and Douglas's concurrences were finished, and White's and Rehnquist's dissents were ready. There was still nothing from Burger.
White was particularly unhappy with the progress of the term. Dozens of cases were ready to come down except, more often than not, for the Chief's vote. He wrote a memo pointing out the bottleneck.
By early January, there was still nothing from the Chief. Blackmun grew increasingly nervous. He was worried about his reputation for being chronically late. He had not yet brought down an opinion for the term. Abortion was ready; he wanted it to come down at once. Blackmun and the others in the majority finally began pointing toward a Monday, January 15, announcement of the abortion decisions. Still there was nothing from Burger.
On January 12 at conference, Stewart put it to the Chief directly. "Vote now or let the decision come down with only eight votes," Stewart suggested.
To the majority's surprise, Burger said that he had decided to join the Blackmun opinion but, like some of the others, he wanted to add his own concurring remarks. "I'll get it to you next week," he promised.
Stewart and Brennan thought he was stalling. The Chief was scheduled to swear in Richard Nixon for his second term as President on January 20. It would undoubtedly be embarrassing for Burger to stand there, swearing in the man who had appointed him, having just supported a sweeping and politically volatile opinion that repudiated that man's views.
At the Friday, January 19, conference, the Chief said that his schedule had been busy, and he still had not gotten to the abortion decision. Stewart figured that, having manipulated a delay until after the Inaugural, Burger would acquiesce. The others wanted a Monday, January 22, announcement, three days later, and Burger said that he would have something.
Over the weekend, he wrote a three-paragraph concurrence. Ignoring the sweep of the opinion he was joining, Burger said that one law (Texas) was being struck because it did not permit abortions in instances of rape or incest, and he implied that the other law was being struck because of the "complex" steps that required hospital board certification of an abortion. He did not believe that the opinion would have the "consequences" predicted by dissenters White and Rehnquist, and he was sure that states could still control abortions. "Plainly," he concluded, "the Court today rejects any claim that the Constitution requires abortion on demand."
The day of the scheduled abortion decision the Chief sat in his chambers reading the latest edition of Time magazine. "Last week TIME learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land," an article said. The abortion decision had been leaked.
Burger drafted an "Eyes Only" letter to the other Justices. He wanted each Justice to question his law clerks. The responsible person must be found and fired. Burger intended to call in the F.B.I, to administer lie-detector tests if necessary.
Dutifully, Rehnquist brought up the matter with his clerks. It was harmless in this case, he said. But in a business case, a leak could affect the stock market and allow someone to make millions of dollars. None of Rehnquist's clerks knew anything about the leak, but they asked him if it were true that the Chief was thinking of lie-detector tests. "It is still up in the air," Rehnquist said. "But yes, the Chief is insisting."
Rehnquist's clerks were concerned. Such a witch-hunt would be met with resistance. Certainly, some clerks would refuse to take such a test and would probably have to resign. The Chief is mercurial, Rehnquist explained. "The rest of us will prevail on him."
Brennan summoned his clerks and read them the Chiefs letter. It was another example, he said, of the Chief usurping the authority each Justice had over his own clerks. "No one will question my law clerks but me," Brennan said. Then in a softer voice, he added, "And I have no questions." The real outrage for Brennan was not the leak but the delay. If the Chief had not been intent on saving himself and Nixon some embarrassment on Inauguration day, there probably would have been no damaging leak.
Marshall asked what his clerks knew about the incident.When he was assured that they knew nothing, he told them to forget it
Douglas treated the letter as he had treated a request from the Chief the previous term that all clerks be instructed to wear coats in the hallways. He ignored it.
Powell was out of town, so one of his clerks opened the Chief’s letter. The clerk had talked to the Time reporter, David Beckwith, trying to give him some guidance so he could write an intelligent story when the decision came down. But the delay in announcing the decision had apparently left Time with a scoop, if only for half a day.
The clerk called Powell and told him about the Chief’s letter and his own terrible mistake in talking to Beckwith. He volunteered to resign.
That would not be necessary, Powell said. But a personal explanation would have to be given to the Chief.
Powell called Burger and explained that one of his clerks, a brilliant and talented young lawyer, was responsible.
The clerk realized his mistake and had learned his lesson. The clerk went to see the Chief.
Burger was sympathetic. Reporters were dishonest and played tricks, he said. It was a lesson everyone had to learn.
Apparently never expecting to learn so much about the little deceptions of both reporters and sources, Burger pressed for all the details. It took nearly forty-five minutes to satisfy his curiosity.
The clerk concluded that Burger understood, that he was being a saint about the matter. Burger wanted a memo detailing exactly what happened. The clerk would not have to resign.
Later, the Chief met with top editors of Time in an off-the-record session. He labeled Beckwith's efforts to get inside information at the Court improper, the moral equivalent of wiretapping.
Blackmun suggested to his wife, Dottie, that she come to Court to hear case announcements on Monday, January 22. He did not tell her why. As Blackmun announced the decisions, Powell sent a note of encouragement to Blackmun's wife. Powell suspected they were about to witness a public outcry, the magnitude of which he and Blackmun had not seen in their short time on the Court.
"I'm very proud of the decision you made," Dottie later told her husband.
After the abortion decision was announced, Blackmun took congratulatory calls through most of the afternoon. But former President Lyndon Johnson died the same day, and the news of his death dominated the next morning's newspapers.
Blackmun was unhappy that the abortion decision did not get more attention. Many women, especially the poor and black, would not learn of their new rights. But the outcry quickly began, led by the Catholic Church. "How many millions of children prior to their birth will never live to see the light of day because of the shocking action of the majority of the United States Supreme Court today?" demanded New York's Terence Cardinal Cooke.
John Joseph Cardinal Krol, of Philadel
phia, the president of the National Conference of Catholic Bishops, said, "It is hard to think of any decision in the two hundred years of our history which has had more disastrous implications for our stability as a civilized society."
Thousands of letters poured into the Court. The guards had to set up a special sorting area in the basement with a huge box for each Justice.
The most mail came to Blackmun, the decision's author, and to Brennan, the Court's only Catholic. Some letters compared the Justices to the Butchers of Dachau, child killers, immoral beasts, and Communists. A special ring of hell would be reserved for the Justices. Whole classes from Catholic schools wrote to denounce the Justices as murderers. "I really don't want to write this letter but my teacher made me," one child said.
Minnesota Lutherans zeroed in on Blackmun. New Jersey Catholics called for Brennan's excommunication. Southern Baptists and other groups sent over a thousand bitter letters to Hugo Black, who had died sixteen months earlier. Some letters and calls were death threats.
Blackmun went through the mail piece by piece. The sisters of Saint Mary's hospital, the backbone of the Mayo Clinic, wrote outraged letters week after week. He was tormented. The medical community and even his friends at Mayo were divided. Blackmun encountered picketing for the first time in his life when he gave a speech in Iowa. He understood the position of the antiabortion advocates, but he was deeply hurt by the personal attacks. He felt compelled to point out that there had been six other votes for the decision, besides his, that the Justices had tried to enunciate a constitutional principle, not a moral one. Law and morality overlapped but were not congruent, he insisted. Moral training should come not from the Court but from the Church, the family, the schools.