Tuesday, April 29, 2014

Garrow on the Writing of Roe v. Wade

David J. Garrow, University of Pittsburgh School of Law, has posted How Roe v. Wade Was Written, which also appears in the Washington and Lee Law Review 71 (2014): 893-924.  Here is the abstract:    
Justice Harry A, Blackmun (LC)
Let me begin with one sentence that Justice Harry A. Blackmun uttered in 1987: “Roe against Wade was not such a revolutionary opinion at the time” that it was handed down in January 1973, and in that statement Justice Blackmun was indisputably correct.

In early May 1971, the Supreme Court agreed to hear Roe v. Wade from Texas and Doe v. Bolton from Georgia. Both had been filed in early 1970 and had then come before special three-judge district courts from which direct appeal to the Supreme Court was possible following the panels’ denials of injunctive relief. Both panels had nonetheless ruled against the existing Texas and Georgia abortion statutes, and with a plethora of other abortion cases already docketed before the High Court — including ones from Louisiana, Missouri, and Illinois — and others known to be looming, it was unsurprising that five Justices — Douglas, Harlan, Brennan, White, and Marshall — voted to accept both Roe and Doe for argument on the merits come October Term 1971.

It is ironic that Harry Blackmun, who has gone down in history first and overwhelmingly foremost as the author of Roe v. Wade, privately opposed making the case’s holding anywhere near as extensive as his final opinion actually came to be. Equally notable, a strong and poignant counterfactual argument can be made that an actual majority of the Roe Court — Blackmun, William O. Douglas, the reluctant Warren Burger and the two actual dissenters, Byron White and William Rehnquist — would have preferred a holding that reached only to the end of the first trimester. But, instead, the more strongly articulated preferences of Lewis Powell, William Brennan, Thurgood Marshall’s chambers, and Potter Stewart decisively prevailed as Blackmun, encouraged also by his clerk Randall Bezanson, moved to adopt U.S. District Judge Jon O. Newman’s influential emphasis in a just-decided Connecticut abortion case, Abele v. Markle, concerning the decisiveness of fetal viability. That a supposedly conservative, southern appointee of Republican President Richard M. Nixon, in tandem with a Roman Catholic justice named to the Court by Republican President Dwight D. Eisenhower, made Roe v. Wade and Doe v. Bolton dramatically more far-reaching than they would have been had Harry Blackmun adhered to the view of pregnancy he brought to those 1972 discussions further underscores how ironic indeed it is that Roe and Doe came to be what they were on January 22, 1973.

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