Abuse of Discretion

The Inside Story of Roe v. Wade

Clarke D. Forsythe

• Editorial: Encounter Books
• Año: 2013
• ISBN:
  9781594036934
• Categoría: Politica e relazioni internazionali
• Categoría: Governo americano

Based on 20 years of research, including an examination of the papers of eight of the nine Justices who voted in Roe v. Wade and Doe v. Bolton, Abuse of Discretion is a critical review of 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 first half of the book looks at the mistakes made by the Justices, based on the case files, the oral arguments, and the Justices’ papers. The second half of the book critically examines the unintended consequences of the abortion decisions in law, politics, and women’s health.Why do the abortion decisions remain so controversial after almost 40 years, despite more than 50,000,000 abortions, numerous presidential elections, and a complete turnover in the Justices? Why did such a sweeping decision—with such important consequences for public health, producing such prolonged political turmoil—come from the Supreme Court in 1973? Answering those questions is the aim of this book. The controversy over the abortion decisions has hardly subsided, and the reasons why are to be found in the Justices’ deliberations in 1971-1972 that resulted in the unprecedented decision they issued.Discuss Abuse of Discretion on Twitter using hashtag #AbuseOfDiscretion.

PART I

MISTAKES

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CHAPTER ONE

The Road to Roe

INSIDE THE SUPREME COURT

Potter [Stewart] pressed for Roe v. Wade and Doe
v. Bolton to be heard and did so in the misapprehension
that they involved nothing more than an application of
Younger v. Harris. How wrong we were.

—JUSTICE HARRY BLACKMUN,
LETTER TO CHIEF JUSTICE REHNQUIST¹

Should we spell out—although it would then necessarily
be largely dictum——just what aspects are controllable by the
State and to what extent?

——JUSTICE HARRY BLACKMUN,
MEMORANDUM TO THE CONFERENCE (MAY 1972)²

A Mistake from the Beginning

Roe and Doe began, in the Supreme Court, as a serious procedural mistake that left the Justices without any factual record to consider the complex historical, legal, medical, and constitutional issues surrounding abortion. At least some Justices decided to hear the cases under the “misapprehension” that they were dealing merely with procedural issues.

Justice Blackmun related this mistake to at least two people, and it is confirmed by the briefs in the abortion cases, the Justices’ papers, and the oral arguments. Blackmun told the story to Chief Justice William Rehnquist in July 1987, as the Supreme Court confirmation hearings for Judge Robert Bork were heating up in the U.S. Senate. In a July 16 letter to Blackmun, Rehnquist shared his concerns that the Court would be short-handed without a full bench of nine Justices in the fall, if Bork wasn’t confirmed or the hearings were prolonged.

Blackmun wrote back on July 20 to allay Rehnquist’s concerns with his story of how Roe was selected in 1971 by a subcommittee of Justices that Chief Justice Burger assembled to avoid “controversial cases” while the Court was shorthanded with two vacancies after the sudden retirements of Justices Hugo Black and John Harlan in September 1971.

I remember that the old Chief [Warren Burger] appointed a screening committee, chaired by Potter [Stewart], to select those cases that could (it was assumed) be adequately heard by a Court of seven. I was on that little committee. We did not do a good job. Potter pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were.³

Blackmun repeated his story to James Simon four years later in a May 1991 interview for Simon’s book, The Center Holds, calling the decision to hear the abortion cases “a serious mistake”:

The chief justice was concerned that the remaining seven members of the Court would have to decide controversial cases on the docket, such as Roe v. Wade ... without a full court.... The committee, chaired by Potter Stewart and which included Harry Blackmun, let Roe v. Wade and Doe v. Bolton go forward. “It was a serious mistake,” Blackmun later said. “We did a poor job. I think the committee should have deferred them [the abortion cases] until we had a full Court.”⁴

With Younger v. Harris, Justice Blackmun was referring to a controversial case decided on February 23, 1971, sixty days before the Justices voted on April 22 to hear Roe and Doe. For two years, while Justices Hugo Black and John Harlan were still on the Court, the Justices had been immersed in Younger v. Harris, which involved the politically delicate issue of federal court intervention in state court criminal proceedings. Argued three times before it was finally decided, Younger put limits on the power of federal courts to interfere with pending criminal prosecutions in state courts.

Younger intersected with the abortion cases filed in federal court against state laws from 1969 to 1972 because a doctor who was prosecuted for abortion in state court might file a case in federal court to block the state prosecution—the kind of scenario with which Younger was concerned. Thus, Younger overshadowed the abortion cases filed in federal court at a number of points between 1970 and 1972.⁵

In fact, Bob Woodward and Scott Armstrong—in their controversial 1979 book The Brethren, which shed more light on the inner workings of the Supreme Court than ever before—briefly reported the same story. But they told it in such a casual way that its significance was probably lost on most readers, and they told the story from the perspective of Justice Douglas, who had a long-standing desire to eliminate the abortion laws, and who had strongly opposed the Court’s result in Younger. They wrote:

Douglas had long wanted the Court to face the abortion issue head on.... Douglas realized, however, that a majority of his colleagues were not likely to give such a sweeping reading to the Constitution on this increasingly volatile issue. He knew also that the two cases now before the Court [Roe v. Wade and Doe v. Bolton] did not signal any sudden willingness on the part of the Court to grapple with the broad question of abortions. They had been taken only to determine whether to expand a series of recent rulings limiting the intervention of federal courts in state court proceedings. Could women and doctors who felt that state prosecutions for abortions violated their constitutional rights, go into federal courts to stop the state? And could they go directly into federal courts even before going through all possible appeals in the state court system? Douglas knew the Chief wanted to say no to both these jurisdiction questions. He knew the Chief hoped to use these two cases to reduce the number of federal court cases brought by activist attorneys. The two abortion cases were not to be argued primarily about abortion rights, but about jurisdiction. Douglas was doubly discouraged, believing that his side was also going to lose on the jurisdiction issue.⁶

Blackmun’s scenario helps explain why the nine Justices (Black and Harlan were still on the Court) agreed to hear Roe and Doe in April 1971 and why they took two cases without any factual record addressing the difficult legal, historical, or medical questions involving abortion that the Justices would eventually face. Other abortion cases with such trial records had been, or would be, decided between 1970 and 1972. But deciding the procedural application of Younger to Roe and Doe in 1971 would not require an extensive factual record.

Blackmun’s story is confirmed by the plaintiffs’ briefs. For years, attorney Roy Lucas had pursued a court strategy to eliminate the abortion laws. In October 1970, Lucas and co-counsel Sarah Weddington filed their thirty-three-page appeal (called a “Jurisdictional Statement”) in the Supreme Court in Roe v. Wade. It focused on the procedural questions, and did not forecast the extensive medical, historical, and sociological questions that would eventually be addressed. Joining Lucas and Weddington on the appeal was Professor Norman Dorsen (a good friend of Justice William Brennan), ⁷ who would argue the abortion rights side in January 1971 in a case involving the District of Columbia’s abortion law, United States v. Vuitch.

Blackmun’s recollection of the Justices “misapprehension” is also confirmed by the Justices’ papers. One of the earliest memos in Blackmun’s files on the abortion cases is a memo from a law clerk, dated January 5, 1971, a week before United States v. Vuitch was argued and six weeks before Younger was decided.⁸ The memo focused on the procedural questions.⁹ Later in 1971, just before the first arguments in Roe and Doe, another Blackmun clerk wrote a thirty-two-page “bench memo” to Blackmun on December 10, referring to the “procedural complexities of this case [Roe].”¹⁰

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The procedural complexities were not something to be lightly dismissed. Indeed, they were asking some of the biggest questions about Roe: Should the Justices decide this issue? Should they decide it without any factual record? Or without review first by a federal appellate court? Could Jane Roe or Mary Doe clearly and accurately represent the facts of the abortion controversy? Could they represent the “class” of women seeking abortion? Should the Supreme Court sweep away an important area of criminal law and public health?

Roe started with all these procedural questions, until several Justices found a way to get around them. Justice Brennan suggested a way, after the first oral argument, in a December 30, 1971, memo to Justice Douglas:

[T]here would seem to be a number of threshold issues that are of varying difficulty. Some, I think, must be expressly addressed, while others perhaps require no discussion or should be simply finessed. None, in my opinion, forecloses decision on the crucial questions here—the existence and nature of a right to an abortion.¹¹

The procedural complexities meant that the lawyers and the Justices spent so much time on procedure during the first round of arguments in December 1971 that precious little time was left for the substantive, constitutional questions.

In the first argument in Roe on December 13, 1971, Justice Stewart posed the second question of the morning to Sarah Weddington, emphasizing that “a good many threshold questions ... of jurisdiction” needed to be addressed.¹² According to Woodward and Armstrong’s account, the jurisdictional issues didn’t take a backseat to the question of a right to abortion until after the first oral argument, when the Justices met in conference^a to vote on Thursday, December 16, 1971. Mitchum v. Foster,¹³ a case with a “similar question of jurisdiction,” was argued on the same Monday as the abortion cases, and the Justices discussed Mitchum before Roe and Doe that Thursday. The discussion of Mitchum among the seven Justices present at that conference (Justices Powell and Rehnquist did not join the Court until January 1972) ended with a vote of Stewart, Douglas, Brennan, and Marshall for “taking jurisdiction” in Mitchum. Woodward and Armstrong recorded what was apparently Douglas’s conclusion that day:

Since the jurisdiction question here was the same as in the abortion cases, the Court had effectively decided the abortion jurisdiction issue as well. The Court did have jurisdiction. Suddenly, unexpectedly, the Court found itself faced with the underlying constitutional issue in the abortion cases. Did women have a right to obtain abortions?¹⁴

If the Court had jurisdiction, and such federal challenges to state laws could be filed in federal court, the Justices should have limited the decisions in Roe and Doe to the jurisdictional issue, and looked for new abortion cases with a factual and medical record.

Though this oversight seems minor, it was a blunder that skewed the Justices’ consideration of abortion for the next thirteen months. By brushing aside these procedural questions, and deciding the abortion issue with no factual record, the Justices stumbled into an enduring controversy.

The Marital Foundation of Griswold v. Connecticut

The desire of a 4–3 bloc of Justices—Douglas, Brennan, Marshall, and Stewart—to sweep aside the procedural issues to create a right to abortion in December 1971 is better understood by three cases that preceded Roe v. Wade: Griswold v. Connecticut, Eisenstadt v. Baird, and Unite...