It was the year 1971. Two abortion cases had just been appealed to the U.S. Supreme Court: the infamous Roe v. Wade—which was out of Texas—and its sister case Doe v. Bolton—which was out of Georgia.

The pseudonymed plaintiff-appellants Roe and Doe were Norma McCorvey and Sandra Cano, respectively. As of 1971, both women had already given birth to their children, and so some argued their cases were moot. In an effort to obtain an abortion in 1968, McCorvey had falsely claimed that she had been raped by a group of black men. After trying unsuccessfully to obtain an illegal abortion, McCorvey gave birth to a daughter and placed her up for adoption.

Cano, who was not seeking an abortion, had hired an Atlanta ACLU attorney named Margie Pitts Hames to work on her divorce and custody case. For reasons not entirely clear, “Hames applied Cano for an abortion without Cano’s knowledge. When the abortion was approved, Hames notified Cano, who strongly reiterated that she did not want an abortion.” Apparently concerned Hames would coerce her into having one, Cano fled to Oklahoma. Undeterred, Hames filed an abortion rights case on her behalf.

In the preceding four years before Roe and Doe, thirteen states—including Georgia—had enacted “reform” bills that had been drafted by the American Law Institute. At the time, these bills were seen as being progressive. They permitted abortion for three additional reasons—i.e., in addition to protecting the life of the mother: (1) rape and incest, (2) serious and permanent bodily injury to the mother, and (3) significant deformity of the unborn child.

Prior to thirteen states’ passage of these bills from 1967-71, virtually every state prohibited abortion outright, except in instances of danger to the mother. In fact, in 1966 Mississippi had become “the first U.S. state to allow abortion in cases of rape.” Prior to Roe, the vast majority of states still prohibited abortion in most instances. To be clear, these laws generally “did not punish women for inducing abortions,” but rather only the abortion providers. Only three states permitted abortion somewhat broadly.  

The U.S. was not an outlier in its restrictive position on abortion. The vast majority of countries, including Western European powers, had similar laws on the books. There were exceptions of course. In 1920, the Soviet Union “was the first country in the world to legalize all abortions.” In the 1930s, Poland “was the first country in Europe . . . to legalize abortion in cases of rape and threat to maternal health”; Nazi Germany had “amended its eugenics law . . . [to] allow[] abortion if a woman gave her permission, and if the fetus was not yet viable, and for purpose of so-called racial hygiene”; and Sweden legalized it on a limited basis.

However, the likes of France, Britain, Italy, the Netherlands, and most other countries around the world categorically prohibited abortion unless the mother’s life was in danger or her health would be permanently damaged.  This would remain the case for decades to come.

So, what happened that led to the rush of abortion rights in the late-1960s and 1970s? Well, keep in mind that the sexual revolution had been underway since the early-1960s in the States and around the rest of the developed world. As a result,“[t]he normalization of contraception and the pill, public nudity, pornography, premarital sex, homosexuality, masturbation, alternative forms of sexuality, and the legalization of abortion all followed.”

The sexual revolution was so culturally impactful that soon the U.S. Supreme Court began to weigh in on related issues—a case-in-point (pun intended) of the popular phrase “policy is downstream from culture.”

For example, in 1965, the Court established a constitutional “right of privacy” and found that it protected the rights of married couples against state restrictions on contraception. In 1969, the Court ruled that this newly memorialized “right of privacy” permitted private possession of obscene materials—i.e., states could not prohibit pornography possession.

Not only were the courts influenced by the sexual revolution, so were executive and legislative branches. For example, in 1968, President Lyndon B. Johnson’s administration released a report calling for a repeal of all abortion laws. Also in 1968, the UK’s “Abortion Act” took effect, which legalized abortion on wide grounds.

Also worth mentioning is the escalating fear in the 1960s and beyond that the world was experiencing a “Population Bomb”, which, if not curbed, would lead to worldwide famine and societal upheaval. As a result, “[i]n the late 1960s the U.S. government became a major funder of population control programs overseas and built multilateral support through establishment of the U.N. Fund for Population Activities.” Furthermore, organizations such as Planned Parenthood began to “champion[] both abortion rights and global population control policies,” many of which “were racist by any reasonable definition.” (Ross Douthat, NYT, “The Ghost of Margaret Sanger”).

With these things in mind, we now circle back to the Court’s review of Roe v. Wade and Doe v. Bolton beginning in 1971. Remember, Roe was about Texas’s abortion law, which prohibited abortion except in cases of danger to the mother. Doe was about Georgia’s abortion law, which was one of the new “reform” laws and thought to be relatively progressive.

Up on appeal from the local U.S. District Courts in Texas and Georgia, neither Roe nor Doe had undergone a trial. In fact, by the time the cases made their way to the Supreme Court

[t]he factual records in Roe and Doe were virtually nonexistent—consisting merely of a complaint, an affidavit, and motion to dismiss that addressed legal, not factual, issues. No factual hearing. No witnesses. No testimony. No cross-examination. Just two hour-long hearings, in which the judges addressed procedural and jurisdictional issues more than substantive questions. And then a direct appeal to the Supreme Court was made, without any intermediate appellate review.

Clark D. Forsythe, “Abuse of Discretion: The Inside Story of Roe v. Wade”.

The justice who would author the majority opinion in Roe—Justice Harry Blackmun—just four years later would write, “The problem is a complex one, about which widely differing views can be held, and, as such, it would be somewhat precipitate [i.e., impulsive] to take judicial notice of one view over another on the basis of a record as barren as this.”

Likewise, three years after Roe, Justice Marshall—who enthusiastically joined the majority opinion in Roe despite the case’s barren record—would make note that the Court would “decline[] to decide important questions regarding ‘the scope and constitutionality of legislation’ . . . in the absence of ‘an adequate and full-bodied record.'” Several other justices echoed this very same principle.

But this is precisely what the Supreme Court would end up doing in Roe and Doe—taking judicial notice of a myriad of sociological, historical, and medical claims without any record before it.

Before we get too far ahead of ourselves, we again focus on September 1971—sixteen months before the Court would actually issue its opinion creating a constitutional right to abortion.

At the time, the high court consisted entirely of men. All but one of the justices were in their sixties, seventies, or eighties. With the exception of Justice Thurgood Marshall—who was the first African-American to be appointed to the U.S. Supreme Court (four years prior by President Johnson)—all of them were white. The two oldest—85-year-old Justice Black and 72-year-old Justice Harlan—would soon resign and in fact pass away before oral arguments were conducted in Roe and Doe.

The demographics of the Court in 1971 is ironic for two reasons—both of which relate to our culture’s increasing disparagement of white men.

First, while men and women have similar views on abortion, the polls make clear that more women than men believe abortion should be illegal. In 2000, for example, an LA Times poll found that “72% [of women] believe second-trimester abortions should be illegal, compared with 58% of men.” Many men support abortion, for example, so that sex then has less strings attached (e.g., no child support if a child is aborted) or so employment policies need not be revised to accommodate for biological differences in women since women can choose abortion should they want workplace equality with men.

Second, “the abortion rate is five times higher for African-Americans than for whites.” (Douthat, NYT). “Overall, 43 percent of pregnancies among black women end in abortion.” (Trillia Newbell, “Abortion and Black Women“). It is likely because of harrowing statistics like these that African-American U.S. Supreme Court Justice Clarence Thomas recently likened the Court’s decision in Roe to that of Dred Scott—calling them “the Court’s most notoriously incorrect decisions.”

After yet another short detour, we again return to late-1971 when the two abortion cases were pending before the high court. Before President Nixon could replace the two retired Justices (Black and Harlan), the Court pressed forward with oral arguments in Roe and Doe. Roe’s most prominent attorney, Roy Lucas—a leading abortion rights activist—“feared that he had to get an abortion case up to the Court quickly, before any Nixon appointments could swing the Supreme Court conservatively.” (Forsythe). In fact, “many believed that, with Black and Harlan gone, the Court could go 4-3 in favor of abortion (Marshall, Brennan, Stewart, and Douglas).” Id. Justices Burger, Blackmun, and White were seen as more conservative.

On December 13, 1971, the Court heard oral arguments with just seven justices instead of the usual nine. Despite the complete absence of a factual record, the arguments lasted just thirty minutes per side.

Three days later, the justices met “in Conference” to vote on the cases. Justices Douglas and Brennan “led the proabortion block.” They were also the two oldest justices at the time. As reported by renowned journalist Bob Woodward in his 1979 book “The Brethren: Inside the Supreme Court”, “Douglas had long wanted the Court to face the abortion issue head on” and was prepared to render “a sweeping reading to the Constitution [i.e., creating abortion on demand] on this increasingly volatile issue.”  

Justices Douglas and Brennan merit yet another short detour. Justice Douglas was appointed to the high court in 1939 at the age of forty. He remains the longest tenured Supreme Court justice in the history of the Court. He was undoubtedly a polarizing figure. According to Justice Frankfurter, Douglas did not value judicial consistency or stare decisis (i.e., the legal principle of determining cases according to precedent). According to Judge Posner—”widely considered to be one of the most influential legal scholars in the United States”—Douglas was

“a bored, distracted, uncollegial, irresponsible” Supreme Court justice, as well as “rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed” and so abusive in “treatment of his staff to the point where his law clerks—whom he described as ‘the lowest form of human life’—took to calling him ‘shithead’ behind his back.”

Meanwhile, Justice Brennan, like Douglas, is widely considered one of the “most liberal Supreme Court justices in American history.” Prior to oral arguments in Roe and Doe, and perhaps as far back as the mid-1960s, he and Justice Douglas were apparently plotting to create broad abortion rights. In fact, just a few weeks prior to the oral arguments, Justice Douglas had assigned Justice Brennan to write the majority opinion in the case of Eisenstadt v. Baird. There, the issue was whether states could bar unmarried individuals from using contraception.

In his opinion, Justice Brennan wrote, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Emphasis added).

As noted by author and attorney Clarke Forsythe, this was ”a classic ipse dixit (‘it is true because I say so.’). It is simply an assertion of judicial will”—one that was anathema to virtually all of American legislators just a couple decades prior, let alone at the time of our founding. It is one thing to use contraception in the privacy of one’s own sex-life; it is quite another to involve a physician or abortion provider in the taking of human life in a health facility open to the public.

In a subsequent memo to Justice Douglas, Brennan wrote that this language of his in Eisenstadt would be “useful” for the opinion in Roe and Doe. “Brennan knew well the tactic of ‘burying bones’—secreting language in one opinion to be dug up and put to use in another down the road,” as noted by author and NYT contributor Edward Lazarus in his book “Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court”.  

After the December 16, 1971 conference among the judges, Justice Douglas “immediately started to draft an opinion striking down [both Texas’s and Georgia’s] abortion laws.” (Forsythe). Chief Justice Burger, however—who just the year before had been influential in having President Nixon appoint his childhood friend Harry Blackmun to the bench—“had already assigned the opinion to Justice Blackmun.” (Forsythe). Douglas protested, but Burger stuck to his guns. Nonetheless, Douglas circulated his draft opinion to Brennan alone on December 22, 1971.

A week later, Douglas and Brennan conversed privately regarding their like-minded intention to enshrine very liberal abortion rights in the Constitution. The next day, Brennan sent an eleven-page letter to Douglas laying out “his views on the right of privacy and his conviction that they could use the cases to decisively set forth ‘the existence and nature of a right to an abortion.’” (Forsythe).

But just over a week later, both William H. Rehnquist and Lewis F. Powell were sworn in as the latest Supreme Court justices, after having been appointed by President Nixon a few months prior. And Nixon, who was notably anti-abortion, was set to be sworn in by Chief Justice Burger for a second term on January 20, 1972.

Perhaps not wanting to embarrass Nixon with a wildly polarizing pro-abortion decision immediately before his second term and/or wanting to give the new justices an opportunity to weigh in, Burger was happy to delay the rulings in Roe and Doe for a bit longer—much to Justice Douglas’s and Brennan’s chagrin. Perhaps this is why Burger assigned the opinion to Justice Blackmun—who “was a notoriously slow writer of opinions.” (Forsythe).

With that, we conclude Part 1 of “A Short Story of Roe v. Wade.” I intend to pick back up next week. Below is a photograph taken in January 1971 of the U.S. Supreme Court before Justices Black and Harlan resigned that September.