COLUMN ONE : The Rescue of Roe vs. Wade : How a dramatic change of heart by a Supreme Court justice affirmed the right to abortion--just when the issue seemed headed for certain defeat.
Six months ago, when the Supreme Court announced it was upholding the constitutional right to abortion set forth in the landmark Roe vs. Wade decision of 1973, conservatives across the land were stunned.
Perhaps no one more so than Chief Justice William H. Rehnquist. In May, believing he had the support of four other justices, he had drafted a majority opinion that would have given states broad power to protect “potential human life.”
Rehnquist had every reason to think he could count on Ronald Reagan’s third appointee to the Supreme Court, Anthony M. Kennedy.
An Irish-Catholic from Sacramento, Kennedy says he was brought up to think of abortion as a “great evil.” He once denounced the Roe decision as the “Dred Scott of our time,” a reference to the infamous 1857 ruling that sanctioned slavery and helped spark the Civil War.
But when the chance came to overturn Roe vs. Wade this spring, Kennedy balked. For three weeks in May, he holed up in his Virginia home drafting an opinion that shocked his colleagues and created a new majority to forcefully affirm the abortion right, probably for all time.
The dramatic shift, one of the most profound in the Supreme Court’s history, has ended nearly 20 years of legal skirmishing over the right to abortion in America, according to members of the court who spoke on condition of anonymity.
“That battle is over. It will never be overturned now,” one justice commented recently. The finality of his assessment is bolstered by the election of Democrat Bill Clinton, who has promised to appoint “pro-choice” justices, as well as the Nov. 30 decision striking down an abortion ban enacted in Guam. And it underscores the fact that Presidents Reagan and Bush largely failed in their effort to sharply remake the high court, at least on social issues such as abortion and religion.
Here, then, is the full story behind the case that saved Roe vs. Wade, based on details that have emerged in comments by justices, their clerks and friends since the ruling was issued on June 27.
In 1989, the Rehnquist court had its first chance to attack Roe vs. Wade.
Missouri had enacted a law barring abortions in public hospitals. When the law was struck down, William Webster, Missouri’s attorney general, appealed.
Initially, Webster did not intend to challenge Roe directly. But at the urging of Reagan Administration attorneys, he asked the high court to “reconsider Roe vs. Wade.” Those words propelled the Webster case into a highly publicized challenge to the abortion right.
Rehnquist, a shrewd vote counter, knew in the spring of 1989 that he did not have a five-vote majority to reverse Roe vs. Wade entirely.
His former Stanford law classmate, Justice Sandra Day O’Connor, had sharply criticized Justice Harry A. Blackmun’s overly detailed opinion in the 1973 Roe case, but she steadfastly refused to join calls for overturning the abortion right itself.
O’Connor appeared willing to sanction some restrictions on abortion, though. With her vote, Rehnquist thought he could chip away at the Roe decision and give states more leeway to regulate the practice.
When five justices, including O’Connor, voted to uphold the Missouri law, Rehnquist said he would write the opinion.
Since the Webster case did not involve a ban on abortion, the court need not rule on that issue, Rehnquist said. Nonetheless, he went on to say that abortion is not a “fundamental right,” as Blackmun had said, but rather a mere “liberty interest” that can be restricted by the government. Officials may impose anti-abortion laws that are “reasonably designed . . . for protecting potential human life,” he wrote.
Justices Byron R. White, Antonin Scalia and Kennedy signed on to Rehnquist’s draft, but O’Connor hesitated. In her view, Rehnquist’s comments about Roe were unwarranted and unnecessary to resolve the case. After delaying for weeks, she surprised him by announcing she would not sign his opinion.
Instead, she wrote a concurring opinion stating she would uphold the Missouri law because it did not put “an undue burden” on women seeking abortion.
Furious, Scalia fired off a separate opinion attacking O’Connor in personal terms. A brilliant but combative jurist, Scalia rarely hesitates to criticize his colleagues. O’Connor’s failure to confront Roe is “perverse,” he wrote, and her reasoning is “not to be taken seriously.”
Privately, he could be even more biting. “She’s a politician,” he told friends.
In the end, the 1989 Webster decision settled nothing, except that it irrevocably ruptured the relationship between O’Connor and Scalia.
Over the next two years, Justices William J. Brennan and Thurgood Marshall, two liberals who backed abortion rights, announced their retirements. They were replaced by Bush’s appointees: David H. Souter, a cautious and thoughtful New Hampshire judge, and Clarence Thomas, a prominent black conservative whose Senate confirmation turned into a televised spectacle over allegations of sexual harassment. Now, Rehnquist looked to have an unshakable majority to reverse Roe.
Anti-abortion lawmakers in several states counted the votes and came to the same conclusion. The first test came when the Pennsylvania Legislature passed a new Abortion Control Act.
It required doctors to wait 24 hours before performing an abortion. Teen-age girls were required to have the consent of one parent, while married women were required to certify that they had notified their spouse. The law did not prohibit abortion, however. It was signed into law by Gov. Robert P. Casey.
Before the law could take effect, lawyers for Planned Parenthood filed suit, contending that the measure was intended to harass pregnant women and violated their “fundamental right” to choose abortion without government interference.
But in the wake of the 1989 Webster ruling, what was the law on judging abortion restrictions?
Was it Blackmun’s standard in Roe vs. Wade, which made abortion a “fundamental right” that was off-limits to state regulation? Or was it Rehnquist’s standard, which permitted any restriction “reasonably designed . . . for protecting potential human life?” Or was it something in between, such as O’Connor’s standard, which would permit only regulations that did not put “an undue burden” on the woman’s decision?
In January of this year, the high court said it would hear the case of Planned Parenthood vs. Casey, which challenged the constitutionality of the Pennsylvania statute.
In the background, the election-year clock was ticking. Leaders of the abortion rights movement, including Kate Michelman of the National Abortion Rights Action League, had come to believe that abortion was a lost cause in the Supreme Court. Eventually, Roe would be overturned, she thought. And better that it happen in 1992 before the presidential election, rather than a few months afterward.
But Rehnquist and his colleagues wanted to avoid what would appear to be political grandstanding. With the agreement of O’Connor and Kennedy, the court announced it would focus its attention on the Pennsylvania regulations, not on Roe vs. Wade. That order was widely seen as signaling that the court would avoid a broad pronouncement on abortion.
The signals proved wrong.
Repeatedly, attorneys for the Reagan and Bush administrations had urged the court to overturn Roe entirely, and U.S. Solicitor Gen. Kenneth W. Starr did so again three weeks before the April 22 argument in the Pennsylvania case.
Even if the court did not explicitly overrule Roe, it should spell out a new “standard of review” for judging abortion restrictions, Starr insisted.
He urged a version of Rehnquist’s approach: Anti-abortion laws should be upheld so long as they are “rationally related . . . to protecting potential human life.” If the court should agree to that standard, Starr recognized, the right to abortion would be overturned, even if the court never mentioned the words “Roe vs. Wade.”
But O’Connor and Kennedy still hoped to avoid a broad ruling. During the hourlong argument, they quizzed the attorneys on the details of the state law. It’s better to follow a “case-by-case basis” in judging abortion restrictions, Kennedy commented from the bench.
Two days later, on a Friday morning, the justices gathered behind closed doors to vote on Planned Parenthood vs. Casey.
As a general matter, according to the justices, their discussions at the conference table are surprisingly brief, even in momentous cases. In order of seniority, beginning with Rehnquist, all nine justices state their view of the case and announce how they will vote, either to uphold or overturn the law at issue.
For most of the justices, abortion was an old topic. They had wrestled with it countless times before.
Rehnquist and White, the original dissenters in the Roe case, had said all along they favored overturning the abortion right. They voted to uphold the Pennsylvania regulations.
Blackmun and John Paul Stevens, the lone remaining signers of the Roe decision, said they would strike down the state’s regulations.
O’Connor, the only woman to serve on the court, was troubled by the provision requiring women to notify their husbands. Certainly most women would do just that, but what about an abused and battered wife? And since when can the government tell married couples what they must discuss? In her view, this provision should be struck down because it put an undue burden on some women.
Kennedy indicated he was not prepared to overturn Roe, but the Pennsylvania provisions seemed to be reasonable regulations. He voted to uphold them.
So far, the lineup looked the same as in the Webster case. The outcome appeared to depend on the Bush appointees.
To the surprise of several justices, Souter unequivocally insisted that a basic right to abortion be preserved.
As a Harvard law student, Souter had idolized Justice John Marshall Harlan, a distinguished conservative who served on the liberal Earl Warren court. Harlan preached that the law was a wall built precedent by precedent, and new justices had no business knocking it down even if they disagreed with how it was constructed years before.
Unlike Reagan-era conservatives such as Judge Robert H. Bork, Harlan also believed the court should broadly protect individual freedoms. In 1961, Harlan urged the other justices to strike down a Connecticut law that banned the sale of contraceptives. Four years later, the Supreme Court did just that, thereby setting a precedent for later striking down anti-abortion laws.
Now, Souter invoked Harlan’s legacy. Based on precedent and the Constitution’s guarantee of individual “liberty,” the court should uphold the right to abortion, he maintained.
Clarence Thomas, the newest justice, agreed with Rehnquist and Scalia that the Pennsylvania regulations should be upheld and Roe overturned.
Five justices--Rehnquist, White, Scalia, Kennedy and Thomas--had voted to uphold all of the regulations. The chief justice said he would draft a majority opinion that would uphold the Pennsylvania law because its regulations were reasonably designed to further a “legitimate state interest” in protecting fetal life.
Two others--Blackmun and Stevens--planned to dissent. O’Connor and Souter wanted to write a separate opinion that would uphold the regulations--except the required spousal notification--but also endorse the basic right to abortion.
The 83-year-old Blackmun went back to his chambers convinced that Roe vs. Wade was about to be overturned. All along, he suspected that Rehnquist wanted to overturn the abortion right without ever quite saying so. An opinion that said states may enact any “reasonable regulation” to protect fetal life would do just that.
But he was surprised to get a visit from Kennedy, who appeared to be going through some “soul-searching.” As the author of the Roe opinion, Blackmun had received hate mail for years. He had been called the “Butcher of Dachau, Pontius Pilate, King Herod, a child murderer--you name it,” Blackmun said once.
But sometimes there were pleasant surprises in the mail, too. In his desk drawer, he kept a letter from a nun praising him for upholding the right of a desperate woman to get an abortion. As he and Kennedy chatted, the aging justice showed Kennedy the letter from the nun.
Still, Blackmun remained gloomy. Often, Kennedy had seemed agonized, but in the end, he sided with Rehnquist. Blackmun assumed he would do the same again.
In his first years on the court, Kennedy had been close to Scalia, but that relationship had cooled.
“Nino” Scalia and Tony Kennedy had much in common. Both were born in 1936, were brought up as Catholics, excelled in school and graduated from Harvard Law School as conservatives in a liberal-leaning era. Reagan selected Scalia for the court in 1986, and Kennedy the next year, after Bork’s nomination was defeated in the Senate. As a newcomer to the Washington area, Kennedy bought a house in the same Virginia suburb as Scalia.
At first, the two Reagan appointees jogged together on the Mall in front of the Capitol. Their views seemed in sync, too. Both opposed affirmative action, supported the death penalty and favored a greater role for religion in public life.
But in temperament, they were markedly different. Where Scalia was supremely assured and fiercely assertive, the mild-mannered Kennedy often seemed unsure of himself. Some clerks mocked Kennedy as “Nini,” a paler and blander version of Scalia.
Kennedy insisted that, unlike Scalia, he was a moderate judge, not a right-wing ideologue. “It’s easier to be a Rehnquist or a Scalia than a Kennedy,” he once told a reporter. He may vote often with Rehnquist or Scalia, but he did not share all their views, he told friends from California.
Would he join Rehnquist and Scalia in the move to sweep aside liberal precedents? That question had troubled both Kennedy and Souter for months.
In the summer of 1991, when Thurgood Marshall announced his retirement, the aging civil rights leader predicted that Rehnquist would lead a “broad assault” on “scores of constitutional liberties.”
Separately, Souter and Kennedy say they came to the same conclusion in the months before the Pennsylvania case reached the court. When faced with the ultimate decision, they would not vote to overturn the constitutional right to abortion.
Still, throughout the spring, Kennedy hoped to avoid that ultimate decision. But Rehnquist’s opinion seemed to leave him no choice. If the court announced that states could enact laws “reasonably designed . . . to protect potential human life,” the right to abortion would be overturned.
A few weeks after the April 24 conference, Kennedy made up his mind. He told Souter and O’Connor that he would join their effort to affirm the “core” right to choose abortion. Together, they agreed to jointly write an opinion that would speak for the court. Certainly, Blackmun and Stevens would agree with their essential conclusion.
Souter sat up evenings writing draft after draft on a legal pad. He wanted to stress that the “legitimacy” of the court depended on its adherence to precedent.
Kennedy worked at his Virginia home and spelled out an expansive view of “liberty,” complete with citations from John Marshall Harlan. “It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter,” he wrote.
O’Connor spelled out her view of the woman’s right and said that states may not place any “substantial obstacle in the path of a woman seeking abortion.”
When put together and printed, their joint opinion ran to 60 pages.
When it was circulated through the building, Rehnquist and Scalia were stunned. So, too, was Blackmun. Having drafted a dissent in the Pennsylvania case, he now had to revise it into a concurring opinion.
“Just when so many expected the darkness to fall, the flame has grown bright,” Blackmun wrote. “Make no mistake, the joint opinion of Justices O’Connor, Kennedy and Souter is an act of personal courage and constitutional principle.”
To the conservatives, the whole thing seemed depressingly familiar. In 1970, aides to Richard M. Nixon selected Blackmun as a law-and-order conservative, but were surprised several years later when the Minnesota Republican seemed to join forces with the court’s liberals. Now, Kennedy seemed to be “pulling a Blackmun” too, they complained.
Even the clerks expressed amazement at the sudden change of direction. In late June, they traditionally celebrate the end of the term with a late afternoon party featuring lots of beer and silly skits. This year’s party had a sharp edge at times. When a character portraying Kennedy was introduced, they played the theme song from “Flipper,” the old TV show about a playful dolphin.
Unquestionably, Kennedy’s move had reshaped the court. Still, he seemed a bit uncertain over what he had done.
On the morning of June 27, the day the ruling in the Pennsylvania case was to be announced, Kennedy invited a reporter for the journal California Lawyer to come by his chambers for an interview. The magazine had planned a profile of the Sacramento native.
For an official photo, the justice stood in the middle of the room, nervously picking at his fingernails. At one point, he stood before the tall window that looks out toward the marble plaza where reporters, photographers and abortion activists had gathered to await word on the court’s decision.
“Sometimes you don’t know whether you are Caesar about to cross the Rubicon,” Kennedy said, “or Captain Queeg cutting your own tow line.”
At 10 a.m., the justices emerged from behind their red velvet curtains and took their seats. The thick opinion in Planned Parenthood vs. Casey was handed out to a crowd of waiting journalists on the lower level.
Reporters for the news wires and the broadcast outlets immediately began to send out their stories. They did not have time to go upstairs to hear the justices deliver their opinion.
A first flash from the Associated Press said that the Pennsylvania regulations had been upheld on a 5-4 vote. “Court upholds sweeping new restrictions on abortion,” the initial AP story said, a message that was repeated on radio and TV throughout the day. Abortion-rights leaders quickly decried the ruling as a “devastating” defeat for their cause.
But those who heard the words uttered in the courtroom soon realized that quite the opposite was true as O’Connor, Kennedy and Souter read portions of their joint opinion.
“Men and women of good conscience can disagree, and we suppose always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy,” Kennedy said. “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”
Speaking for the majority, O’Connor summed up the significance of what had just occurred. “The essential holding of Roe vs. Wade is once again reaffirmed,” she said. “A state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”