The Re-Arguments in the Abortion Cases

Thursday, October 11, 2012

Today is the 40th anniversary of the re-arguments (the second round of oral arguments) in Roe v. Wade and Doe v. Bolton.  Because there was no evidentiary record in either Roe or Doe, the oral arguments are essential to understanding the Justices’ thinking and the mistakes they made in reaching such unprecedented and sweeping decisions that have sparked 40 years of social, medical, constitutional and political controversy.

The audios and transcripts

Due to the relative inaccessibility of the official transcripts, and of the inaccuracies in available copies of the transcripts of the arguments, I have posted corrected copies of the transcripts of the two arguments in Roe at http://www.aul.org/roe-v-wade-transcripts/ and transcripts of the two arguments in Doe at http://www.aul.org/doe-v-bolton-transcripts/.  These corrected copies are based on a comparison of the official transcripts with the audios.

The audios can be found at www.oyez.org.  The audios of the first and second arguments in Roe (No. 70-18) can be found at http://www.oyez.org/cases/1970-1979/1971/1971_70_18

The audios of the first and second arguments in Doe (No. 70-40) can be found at http://www.oyez.org/cases/1970-1979/1971/1971_70_40.

The Setting

The first oral arguments in Roe and Doe were held on Monday, December 13, 1971. Only seven justices sat because of the Black and Harlan retirements in September 1971 due to ill health, and the vacancies were not filled until Justices Powell and Rehnquist were sworn in on January 8, 1972. After considerable internal strife, the Justices voted in June 1972 to rehear the cases.

The oral arguments in both of the abortion cases were burdened from start to finish by two major problems: no trial record of factual evidence and much time spent on procedural and jurisdictional questions that prevented focus on substantive historical, medical and constitutional questions. These plagued both the oral arguments and the Justices’ deliberations between December 1971 and January 1973 and thus fundamentally shaped the Justices’ decision-making and the opinions in Roe and Doe.

The Lack of Any Record

There were no trials or evidentiary records in Roe or Doe.  Both had been decided as facial challenges on motions to dismiss.  As the Texas Assistant Attorney General said, “The record that came up to this Court contains the amended petition of Jane Roe, an unsigned alias affidavit, and that is all.”  As the Georgia Assistant Attorney General told the Justices, “That, again, is not in the record because there was no evidence presented.”

The First Arguments

The first arguments were consumed with procedural and jurisdictional issues because the Justices had originally taken Roe and Doe to decide the application of Younger v. Harris (1971), involving federal court interference in pending state court criminal proceedings. For example, so much of the first Doe argument in December 1971 was spent on procedural issues that Margie Pitts Hames, the attorney for the Georgia plaintiffs, made no statement in her first argument about the constitutional basis of her case or of a right to abortion.  And no justice questioned this.  There were virtually no questions on the source of any constitutional right to abortion and almost no questions on the historical basis for such a right.  Hames left this fundamental issue to her one minute rebuttal (to Georgia’s attorney Dorothy Beasley), admitting that “We have not designated a constitutional basis for our case.”  So, Hames gave a one sentence answer: “I would like to say that it is — we contend that the procedural requirements infringe Due Process and Equal Protection, and that the right of privacy, as enunciated in Griswold, of course, is our basic reliance.”  That was the extent of the constitutional discussion in the Georgia case at the first oral argument in Doe.

The Re-Arguments on Wednesday, October 11, 1972

The second round of arguments focused more than the first on substantive medical, social and constitutional issues.  Besides the procedural and jurisdictional questions, there were seven major themes in the arguments—measured by the time spent on them—although they never got the time they deserved:

  • factual and medical assertions about abortion;
  • the historical purposes for the state abortion laws;
  • the legal status and extent of legal protection of the unborn child, including whether the child was a legal or constitutional person;
  • the medical context for the legal protection of life;
  • why abortion law treated women as victims and not accomplices;
  • the exceptions for rape, incest, etc. in Georgia’s law;
  • the difference between abortion laws and laws regulating surgery.

There was no evidentiary or trial record on these questions.  All data was derived from the briefs filed for the first time in the Supreme Court.

Three years after the Roe decision, renowned federal judge Henry J. Friendly criticized the Court for this use of social science and medical materials that were not part of the record:  “[T]he main lesson I wish to draw from the abortion cases relates to procedure—the use of social data offered by appellants and amici curiae for the first time in the Supreme Court itself….The Court’s conclusion in Roe that ‘mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as lower as or lower than the rates for normal childbirth’ rested entirely on materials not of record in the trial court, and that conclusion constituted the underpinning for the holding that the asserted interest of the state ‘in protecting the woman from an inherently hazardous procedure’ during the first trimester did not exist…If an administrative agency, even in a rulemaking proceeding, had used similar materials without having given the parties a fair opportunity to criticize or controvert them at the hearing stage, reversal would have come swiftly and inexorably…The Court should set an example of proper procedure and not follow a course which it would condemn if pursued by any other tribunal.”  Henry J. Friendly, The Courts and Social Policy: Substance and Procedure, 33 U Miami L. Rev. 21, 36-37 (1978) (citing Arthur Miller & Jerome Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 Va. L. Rev. 1187, 1189-1201 (1975)).

After the re-arguments, the opinions were far from done.  Justice Blackmun produced a second draft opinion by November 21, 1972 and—after further negotiations including expanding the abortion “right” from 12 weeks to 28 weeks of pregnancy—produced a third draft on December 21, 1972.

To get the fullest understanding of the arguments and issues in Roe v.Wade and Doe v. Bolton, you should listen to the audios while reading the transcripts.

 

Powell’s Position on Abortion Part II

Thursday, September 27, 2012 

Why did Justice Lewis F. Powell—reputedly nominated as a “conservative” by President Nixon to “roll-back” the Warren Court’s decisions—join the Court’s sweeping opinion which struck down the abortion laws of all 50 states eight months after joining the Court?

John C. Jeffries, Jr., a former clerk for Justice Powell and the past Dean of the University of Virginia Law School, published the official biography shortly after Powell’s papers were released:  Justice Lewis F. Powell, Jr., A Biography (Scribner’s 1994).   Jeffries included an excellent chapter on abortion that stands alone as one of the most thorough, well-written, and insightful analyses of Roe v. Wade.

Professor Jeffries, with whom I discussed Roe v. Wade at an open forum at UVA Law School last spring, is a consummate political “moderate,” but his chapter is one of the most penetrating critiques of Roe v. Wade.

Jeffries sets the stage, describing the background of the Court’s deliberations on the abortion cases, and how Powell joined the Court between the first and second arguments in Roe v. Wade and Doe v. Bolton.   After describing how the sweeping decision was formulated, Jeffries poses this mystery: “Of the nearly three thousand votes in Powell’s judicial career, none is at once so easy and so difficult to explain as abortion…..Powell saw himself following in [Justice John M.] Harlan’s footsteps as a careful, restrained, lawyerly judge. Yet this self-image is forever challenged by his vote in Roe v. Wade.”

To cut to the chase, Jeffries cannot square Roe with Powell’s general judicial philosophy.  He cannot explain how Powell justified his vote.  Instead, Jeffries ends up explaining it as a consequence of personal, sociological, and pragmatic factors:   He voted his “gut,” which was influenced by his wife and daughters.   There was also a “sense of momentum inside the Court.”  The Justices had voted 5-2  in conference to strike the abortion laws three weeks before Powell joined the Court.  When that vote held firm, “it eased Powell’s way into a preexisting majority.”  There was also a “lack of antiabortion sentiment inside the Court.” White and Rehnquist’s dissents were short, not thorough responses to Justice Blackmun’s opinion, and largely based in judicial restraint, not a philosophical conviction about human life. As with Douglas and Brennan, “[t]o Powell, abortion looked like Griswold.”

(Jeffries then follows with a 19 page analysis of the judicial and political aftermath of Roe that is worth reading and re-reading.)

Describing Powell’s vote as “a personal attitude” more than anything else, Jeffries says it was “easy” at the time.   But one of the take-aways from that chapter is Powell’s admission to Jeffries after leaving the Court  that “the abortion opinions were ‘the worst opinions I ever joined.’” (p. 341)

 

 

Powell’s Position in the Abortion Cases Revealed

September 7, 2012

In early September 1972, Justice Lewis Powell—not on the Court at the time of the first oral arguments in Roe v. Wade and Doe v. Bolton, and before the second arguments were heard in October 1972—revealed his position on the abortion cases for the first time to his law clerk.

The four-justice bloc of Douglas, Brennan, Marshall and Stewart worked to prevent the two “Nixon Justices,”  Justices Lewis F. Powell and William Rehnquist from voting in the abortion cases after they joined the Court in January 1972.  Texas had moved to postpone argument until Powell and Rehnquist could join the Court after two vacancies had opened up in the Fall of 1971 before the first arguments.  The 4 justice bloc of Douglas, Brennan, Stewart and Marshall denied that motion on December 7, 1971, a day after Powell was confirmed by the Senate, three days before Rehnquist was conformed, and a week before the first arguments.

After Powell and Rehnquist were sworn in, Chief Justice Burger asked the Justices on January 17, 1972 which cases argued before seven justices should be rescheduled for reargument before the full Court.  Justice Blackmun, assigned to write the opinions in Roe and Doe a month before, immediately moved that the abortion cases be reargued.  This was not acted upon until May.

When Burger and Blackmun renewed their support for putting the cases over the Term at the end of May 1972, Douglas, Brennan, especially, and Marshall and Stewart perhaps to a lesser extent, pressured Blackmun to vote with them to issue the abortion opinions by the end of June 1972 (the end of the 1971 Term).

Powell first hesitated to vote on the motion, and then joined Blackmun’s motion, because Blackmun, the author of the draft opinions, supported the motion.  On June 1, 1972, Powell distributed a memo to the other justices (“the Conferences”) supporting the motion to put the cases “over the term” because Blackmun supported it, and Powell stated that he did not know how he would vote.  Douglas and Brennan feared that Blackmun’s vote would not hold and that Powell and Rehnquist would join with Burger, Blackmun and White to uphold the abortion laws 5-4 if the cases were reargued.

But when Powell returned to the Court after the summer recess, he took his law clerk to lunch at which he revealed that he would vote to strike down the abortion laws.  His clerk, Larry Hammond, told this story to historian David Garrow and reiterated it in an interview in the May 2001 issue of the Phoenix Magazine:

“He was surprised that he was the one Powell picked to do the research…Hammond spent that whole summer gathering information.  When Justice Powell returned in the fall, he asked his clerk to lunch at the Monocle Restaurant in Washington, D.C….It was over this simple meal that Hammond realized that America was about to change forever.”

 

A Clerk’s Revision of the Abortion Opinions, August 1972

Saturday, August 11, 2012
While Justice Blackmun was researching in the Mayo Clinic Library during July 1972, his law clerk was working at the Supreme Court on a new version of the abortion opinions, just before he concluded his clerkship in August 1972.  A July 19, 1972 clerk memo, with a four page outline, indicates the direction of the “redrafts.”

In an August 11, 1972 memo, Justice Blackmun’s law clerk described the changes he was making to the abortion opinion:
“I have written in, essentially, a limitation of the right depending on the time during pregnancy when the abortion is proposed to be performed. I have chosen the point of viability for this ‘turning point’ (when state interests become compelling) for several reasons: (a) it seems to be the line of most significance to the medical professional, for various purposes; (b) it has considerable analytic basis in terms of the state interest as I have articulated it. The alternative, quickening, no longer seems to have much analytic or medical significance, only historical significance; (c) a number of state laws which have  a ‘time cut-off’ after which abortion must be more strongly justified by life or health interests use 24 weeks, which is about the ‘earliest time of viability’.”

This is one of the earliest pieces of evidence in the Justices’ papers that viability was being considered as a gestational marker in defining the abortion right.

It is a paragraph with large assumptions that influenced the outcome without critical examination, since neither the Texas case (Roe v. Wade) nor the Georgia abortion case (Doe v. Bolton) contained any evidentiary record.

In fact, viability was irrelevant to the common law (which focused on quickening and live birth), only three states (New York, Hawaii, and Alaska) had legalized abortion up to viability before 1972, and quickening (the first signs of fetal movement) is of much greater significance to the mother than viability (which is largely a prediction based on medical statistics of infant survival rates).

The historian David Garrow, in his essay, “The Brains behind Justice Blackmun,” in  Legal Affairs in 2005, cited this clerk’s memo as an example of the excessive delegation that Justice Blackmun gave to his clerks, on even the most significant opinions.
[David J. Garrow, The Brains Behind Justice Blackmun, Legal Affairs, pp. 26-34 (May-June 2005)]

However, Justice Blackmun’s next distributed opinion of November 22, 1972 (“2nd Draft”), did not adopt his clerk’s emphasis on viability as the decisive point.  That did not happen until after the second draft, when the Justices began to discuss the breadth of the abortion right that they were creating.

What Justice Blackmun Found in the Mayo Clinic Library

Friday, August 10, 2012

On December 17, 1971, the day after he was assigned the abortion opinions in Roe and Doe, Justice Blackmun wrote to the Mayo Clinic Librarian, Thomas Keys, asking for research assistance.  Blackmun and Keys, a friend of Blackmun’s from his time as Resident Counsel of the Mayo Clinic in the 1950s, were on a first name basis, and exchanged several letters during the first half of 1972.
In July 1972, Justice Blackmun spent a week or two at the Mayo Clinic library in Rochester, Minnesota, doing research on the history of abortion, including the history of the Hippocratic Oath.

A July 6, 1972 letter from Keys indicates that he had secured “a spot for you in the History of Medicine quarters on the 15th floor,” by the time Blackmun arrived on Monday, July 24.
The substance of Blackmun’s research is reflected in a three page memo, likely put together by Keys or his staff, of “selected references on abortion” and the request slips for books and articles that can be found in Box 151 and 152 of Justice Blackmun’s papers in the Library of Congress (LOC).  (Dr. Lester Breslow, as the attached article indicates, had written pamphlets for NARAL in support of the repeal of abortion laws.)

Tomorrow……Justice Blackmun’s clerk revises the opinions back in Washington.

The Brennan Impact on Roe v. Wade – Part II

Thursday, July 26, 2012

Here are the “case histories” from the 1971 Term and the 1972 Term, specifically excerpts from those “case histories” relating to Roe v. Wade and Doe v. Bolton (located in Part II, Box 6 of the Brennan Papers at the Library of Congress).

These two documents from the Brennan Papers show the view from the Brennan chambers as to what happened behind the scenes in the lobbying over the abortion cases.

These are compiled by Justice Brennan’s clerks from those Terms, but some of the “case histories” are written in first person, as though Justice Brennan wrote some parts himself.

The case history from the 1971 Term shows parts of the strategy of Justice Brennan in the abortion cases and shows the Brennan Chambers’ skeptical assessment of the prospects for eliminating the abortion laws as of the end of the 1971 Term.

The case history from the 1972 Term confirms that the Brennan chamber doubted that Justice Blackmun would hold firm to his vote to strike down the Texas and Georgia laws:  “When the 1971 Term ended on June 29, 1972, and these cases had been formally laid over for reargument before a full Court including the newly-appointed Justices Rehnquist and Powell, it is fair to say that it looked extremely doubtful that there would be a majority for the position that restrictive abortion laws are unconstitutional.”

 

The Brennan Impact on Roe v. Wade – Part I

Wednesday, July 25, 2012

Yesterday was the 15th anniversary of Justice William J. Brennan’s death (July 24, 1997), and more of his papers were released at the Library of Congress (LOC).  The copyright on most of his papers (including the ones I’m releasing today) has been “dedicated to the public.”

Justice William J. Brennan’s biographers, Stern and Wermeil (p. 369), reveal Brennan’s strategy in Roe v. Wade and Doe v. Bolton:

“Even more so than in other cases, Brennan worked quietly behind the scenes in Roe v. Wade, reluctant to push Blackmun too hard and perhaps a bit reluctant to come out front and center on the issue of abortion.  In fact, he worked so quietly that for some time it remained difficult to determine exactly how influential a role he played.” 

With the Stern and Wermeil biography, and with the gradual release of Justice Brennan’s papers at the Library of Congress, the role he played has become somewhat clearer.   

By the end of December 1971, after the first oral arguments in Roe and Doe on December 13, 1971, Justice Brennan had drafted a memo outlining a right to abortion.  Knowing that Blackmun was a notoriously slow writer of opinions, and agreed that “some time may pass before we hear from Harry,” Justices Douglas and Brennan decided to bide their time until Blackmun distributed an opinion.  But they pressed Justice Blackmun to strike down the Texas and Georgia laws and release his opinions by the end of the 1971 Term.

A 4-justice bloc of Douglas, Brennan, Marshall and Stewart was created by the abrupt retirements of Justices Black and Harlan due to ill health in September 1971.  One document that shows the willfulness of Justice Brennan and Douglas, in the wake of those retirements, to eliminate the abortion laws with their temporary 4-3 majority, is a hand-written note that Brennan gave Douglas around June 1, 1972.  Here’s an excerpt:

I will be God-damned!  At lunch today, Potter [Stewart] expressed his outrage at the high handed way things are going, particularly the assumption that a single Justice if CJ [Chief Justice] can order things his own way, and that he can hold up for nine anything he chooses, even if the rest of us are ready to bring down 4-3’s for example.  He also told me he…resents CJ’s confidence that he has Powell and Rehnquist in his pocket.  Potter wants to make an issue of these things—perhaps fur will fly this afternoon.”

 This note helps explain the internal crisis that erupted in the Supreme Court in May-June 1972 over the abortion cases, when Chief Justice Burger moved (for a second time) that the abortion cases (Roe and Doe) “go over the Term” and be rescheduled for re-argument in the Fall of 1972.  Reargument would allow “the Nixon Justices”—Powell and Rehnquist who had joined the Court on January 8, 1972 after the first argument—to hear the re-argument and vote.   Brennan and Douglas feared that re-argument might change the result from 4-3 to strike down the abortion laws to 5-4 to uphold the abortion laws. 

Based on Justice Blackmun’s support for re-argument in the Fall, Powell and Rehnquist eventually voted (in early June 1972) with Blackmun, Burger, and White for re-argument in the Fall of 1972.   When the Court issued an order in late June to reschedule argument in the Fall, Douglas was the lone public dissenter.  

More tomorrow……… 

 

 

Discord in the Supreme Court?

Jul 11, 2012

The June 1972 Crisis Revisited

The “discord” at the Supreme Court since the health care ruling that CBS News Correspondent Jan Crawford has written about in the past few weeks can’t compare to June 1972.

Forty years ago, the Supreme Court was locked in an internal crisis over the Roe v. Wade and Doe v. Bolton cases.  Roe v. Wade and Doe v. Bolton were first argued on December 13, 1971 before seven Justices, during the 15 weeks that transpired between the retirements of Justices Black and Harlan in September 1971 and the swearing-in of Justices Powell and Rehnquist on January 8, 1972.

Justice Blackmun worked on his draft opinions in Roe and Doe from December to May, and distributed a first draft of 17 pages in Roe on Thursday, May 18, 1972.  In his Memorandum to the Justices, he referred to it as “a first and tentative draft for this case,” and it was limited to striking the Texas abortion statute on grounds of unconstitutional vagueness.   Justice Brennan responded with a letter the same day [Potter Stewart Papers, Box 268, Folder 3194] pressing Blackmun to decide “the core constitutional question” and “dispose of both cases on the ground supported by the majority” without any reargument in the case.  “Dear Harry: My recollection of the voting on this and the Georgia case was that a majority of us felt that the Constitution required the invalidation of abortion statutes save to the extent they required that an abortion be performed by a licensed physician within some time limit after conception.  I think essentially this was the view shared by Bill, Potter, Thurgood and me.  My notes also indicate that you might support this view at least in this Texas case.  In the circumstances, I would prefer a disposition of the core constitutional question.  Your circulation, however, invalidates the Texas statute only on the vagueness ground.  I see no reason for a reargument in the Georgia case.  I think we should dispose of both cases on the ground supported by the majority.  This does not mean, however, that I disagree with your conclusion as to the vagueness of the Texas statute.  I only feel that there is no point in delaying longer our confrontation with the core issue on which there appears to be a majority and which would make reaching the vagueness issue unnecessary. Sincerely, Bill.”

The following day, Justice William O. Douglas responded with a similar letter, pressing Blackmun to expand his opinion and finish his opinion without reargument in the cases: “My notes confirm what Bill Brennan wrote yesterday in his memo to you—that abortion statutes were invalid save as they required that an abortion be performed by a licensed physician within a limited time after conception… We should meet what Bill Brennan calls the ‘core issue.’”

This exchange began an escalating crisis between the seven Justices (Burger, Douglas, Brennan, Stewart, Marshall, Blackmun, White) who sat for the first argument in December 1971 as to whether Roe and Doe should be decided by the end of the 1971 Term, without reargument that would allow Justices Powell and Rehnquist to vote.

An example of the degree of strife is seen in a 2 page handwritten note that Justice William Brennan gave to Justice William O. Douglas around June 1.

“Abortion was safer than childbirth.”

Jun 12, 2012

An article of mine, entitled A Road Map Through the Supreme Court’s Back Alley, published in May 2012 in the Villanova Law Review, chronicles how the Supreme Court’s abortion doctrine, starting with Roe, led to the elimination of abortion regulations in the first trimester. Despite the fact that there was no evidentiary record in Roe v. Wade or Doe v. Bolton, the Court adopted the false mantra that “abortion was safer than childbirth.” The claim was disputed in the briefs and oral arguments. Justice Blackmun cited seven articles for this claim; and Justice Douglas cited two more in his concurring opinion. None contained any reliable data supporting the claim. Nevertheless, the Justices adopted the medical mantra as a justification for eliminating health and safety regulations in the first trimester. It was used by federal courts during the 1970s and 1980s to strike down health and safety regulations, leading to the substandard conditions in abortion clinics that have led to scandal after scandal in state after state, as my co-author, Brad Kehr, and I document.

Welcome to the Road to Roe

Jun 11, 2012

“The Road to Roe”—a weekly blog on the behind-the-scenes deliberations in the Supreme Court in the two years before the abortion decisions were released—is based on my review of the papers of seven of the nine justices who voted in Roe v. Wade and Doe v. Bolton.  Based on the original documents, I will critically review the behind-the-scenes deliberations that went into the Supreme Court’s abortion decisions and how the mistakes made by the Justices in 1971-1973 have led to the turmoil we see today in legislation, politics, and public health. The controversy over the abortion decisions is intensifying in law and politics, and the reasons why are to be found in the Justices’ deliberations in 1971-1972 that resulted in the unprecedented decision they issued.

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