In Part 1, we left off in January 1972, when Rehnquist and Powell had just been sworn in as the latest Supreme Court Justices—thereby replacing Black and Harlan, who had resigned about three months beforehand. Less than a month prior to their swearing in, the Court heard oral arguments in Roe v. Wade (challenging Texas’s abortion law) and its sister case Doe v. Bolton (challenging Georgia’s abortion law, which had just been passed a few years prior and was one of the most liberal in the country at the time).

Before picking back up with the story, it bears repeating some of the relevant history. Remember, Roe and Doe came to the Court on appeal with no record from the lower courts: no trial, no discovery, no real documentary evidence, no expert reports, no witnesses, and no cross-examination, but rather just two hour-long hearings. It was rare, if not unprecedented, for the Court to decide a case on the merits under such circumstances.

Moreover, just six years prior, not a single state in the country expressly legalized abortion in cases of rape. Abortion was virtually uniformly prohibited except in instances to protect the life of the mother. European laws were similar aside from exceptions in the likes of Russia, Sweden, and Nazi Germany.

Yet, the sexual revolution in the developed world was changing cultures at a blistering speed and pressuring lawmakers to follow suit. As a result, between 1967-1971, thirteen U.S. state legislatures passed laws permitting abortion in cases of rape/incest and significant deformity to the child. These new “reform” laws were the most liberal in the country, and yet remarkably conservative in comparison to the ultimate holding in Roe—which would literally invalidate every single abortion law on the books in the country.

Prior to the hand down of Roe and Doe in 1973 and emboldened by the successful passage of the “reform” laws in thirteen states from 1967-71, “activists decided that the reform laws were not allowing enough abortions and concluded that complete repeal was necessary.” (Clarke Forsythe, “Abuse of Discretion”). However, as noted by pro-choice academic and historian David Garrow, “In virtually every state where a repeal bill had been introduced in the legislature . . . prospects for passage appeared to range from bleak to nonexistent.”

Discouraged by the dismal prospects of repeal in the state legislatures, abortion rights activists began to focus more of their attention on the courts—albeit with limited success. In the years leading up to Roe, twelve courts had struck down state abortion laws; however, twenty-one had upheld state abortion laws and several others had thrown abortion cases out on procedural grounds. (Forysthe). Thus, the activists’ focus would soon center around the U.S. Supreme Court.

All right, back to the story. Immediately after the U.S. Supreme Court conducted oral arguments in Roe and Doe in December 1971, Justice Douglas took it upon himself to begin drafting an opinion striking down both Texas’s and Georgia’s abortion laws. This was because “[t]he Black and Harlan vacancies gave the four justices who favored striking down the abortion laws—Brennan, Douglas, Marshall, and Stewart—a great incentive to decide Roe and Doe without the votes of Powell and Rehnquist.” (Forsythe). Remember, Nixon—who was notably opposed to abortion—had just appointed Powell and Rehnquist.

However, before Douglas’s opinion could gain any traction, Chief Justice Burger informed Douglas that he had assigned the opinion to his childhood friend, Justice Blackmun—who Nixon had appointed the year before. (Forsythe).

Blackmun was a notoriously slow opinion writer. Perhaps this was because he “often doubted his own ability to do the job, and suspected that other Justices, like Hugo Black, Potter Stewart, and William O. Douglas, shared his doubts.” (Forsythe). Blackmun was also not nearly as pro-abortion as Douglas. In fact, it was not abundantly clear where Blackmun stood on the issue. As noted by the NYT, “few people would have predicted that this soft-spoken, 61-year-old judge [Blackmun], a lifelong Republican [from the Midwest] never known for breaking new ground or challenging the status quo, was about to embark on an extraordinary personal journey” and “become a passionate defender of the right to abortion.”

On January 17, 1972, Burger issued a memo to his fellow justices asking them whether Roe and Doe should be reargued before a full court now that Rehnquist and Powell were on board. Blackmun responded, voting in favor of reargument. The issue was left undecided, however, and several months passed by.

On May 18, 1972, Blackmun circulated draft opinions in Roe and Doe striking down both abortion laws on the basis that they were unconstitutionally vague. Justices Brennan, Douglas, Marshall, and Stewart joined the opinions without delay despite not being content with their scope. In fact, the very same day Blackmun distributed his draft opinion, Brennan wrote a memo to Blackmun exhorting him to revise the opinion to decide “the core constitutional issue,” i.e., to create a new constitutional right to abortion.

On May 29, 1972, Justice White issued a dissent critiquing Blackmun’s draft opinion. White wrote that “[i]f a standard which refers to the ‘health’ of the mother . . . is not impermissibly vague [as the Court had expressly held the year before in U.S. v. Vuitch], a statutory standard which focuses on ‘saving the life’ of the mother would appear to be a fortiori acceptable.” In other words, “life” is far less vague than “health,” and the Court had already decided that abortion for the health of the mother was not unconstitutionally vague—so the basis for Blackmun’s opinion was patently illegitimate.

NYU law professor Bernard Schwartz wrote that White’s dissent “effectively demonstrated the weakness of the Blackmun vagueness approach in striking down the Texas law.” Garrow, a self-described democratic socialist who has taught at Duke and UNC among other places, described White’s dissent as “incisive and influential” and an “ironic contribution to the Court’s consideration of Roe and Doe.” What Garrow meant by this is that “by effectively rebutting the vagueness rationale, [White] pushed the Court’s majority to go beyond vagueness and strike down the abortion laws under the broader ground of the Ninth or Fourteenth Amendments.” (Forysthe).

Two days after the release of White’s convincing dissent, Burger renewed his motion for additional oral argument. Blackmun, despite having just penned a draft opinion, again agreed. The four liberals, however, were irate—particularly Brennan and Douglas. They were concerned the decision could go 5-4 against them if Blackmun could be won over by White and company.

Brennan handwrote a note to Douglas stating:

I will be God-damned! At lunch today, [Stewart] expressed his outrage at the high-handed way things are going, particularly the assumption that [Burger] 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 examples. . . . [Stewart] wants to make an issue of these things—perhaps fur will fly this afternoon.

In the following days, Powell, Rehnquist, and White all voted in favor of reargument, which made for a 5-4 majority in favor of reargument.

Douglas was beside himself. On June 1, he sent a protest letter to Burger. On June 2, “Douglas sent Brennan the draft of a scorching dissent that he threatened to publish if the majority voted to rehear the abortion cases.” (Forsythe). In fact, historian and author James Simon, who interviewed Blackmun in 1991, noted that:

Douglas refused to withdraw his dissent until Blackmun personally assured him that his position of declaring the abortion statues unconstitutional was firm. And that he had no intention of reversing that position after reargument. Blackmun gave Douglas that assurance. . . [A]s it turned out, Justice Douglas was the biggest winner of all. His prolonged tantrum had produced a firm commitment from Justice Blackmun to hold to his original position of voting to strike down the Texas and Georgia statutes.

On June 26, 1972, the Court issued its order for reargument, which would occur in October 1972. Douglas’s draft dissent was nonetheless leaked to the press, and the New York Times and Washington Post ran stories about it. Garrow believed that Stewart leaked the dissent because of his disdain for Burger. (Forsythe).

As usual, the Court recessed for the better part of the summer. Blackmun, who had previously served as “resident counsel” for the Mayo Clinic, spent about two weeks there in July, “reportedly doing research on the history of abortion and the Hippocratic oath.” (The Hippocratic Oath was known to disavow abortion: “I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion,” it reads in pertinent part.)

While the justices recessed for the summer, their law clerks did not. Justice Blackmun’s law clerk George Freeman was working tirelessly on a revised opinion—one designed to circumvent Justice White’s critique and address “the core constitutional issue” like the liberal justices wanted. Near the end of the summer, the clerk drafted a memo to Blackmun, writing:

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 most significant to the medical profession, for various reasons; (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 strongly justified by life or health interests use 24 weeks, which is about the “earliest time of viability.”

As we will see in Part 3, viability would become a hallmark of the Court’s decision, despite the fact that “viability, and its implications, were never argued in the lower courts, never brief in the Supreme Court, and never mentioned, even once, during the four hours of oral arguments in December 1971 and October 1972.” (Forsythe).

I will pick back up with Part 3 within a week or so. Below is a photograph of the Court from 1973. As I noted in Part 1, the older-white-male dominated demographics of the Court is ironic for two reasons—both of which relate to our culture’s increasing disparagement of white men and “whiteness.” First, men have historically been more supportive of abortion rights than women in certain respects. Second, the U.S. abortion rate has always been far higher for African-Americans than it has been for whites.