"Arbitrary Legislation" from the Bench -- An Inside Look at the Making of Roe v. Wade.

Editor's note: The following is excerpts of Douglas W. Kmiec, professor of constitutional law, University of Notre Dame and Strauss Distinguished Visiting professor, Pepperdine University, to a House Judiciary Committee, Subcommittee on the Constitution hearing that took place April 22, 1996.

Despite the Supreme Court's putative "reaffirmation" of part of Roe in Planned Parenthood v. Casey, these opinions remain highly contentious because the constitutional premises upon which they rest are so wholly erroneous as to be non-existent in law. The writer Santyana enjoins us to learn from history. Recently, the lessons to be learned from the history of the abortion cases have come into sharper focus because of the donation of the late Justice Thurgood Marshall's papers to the Library of Congress. I have reviewed some of these internal Supreme Court documents, including draft opinions and correspondence in the 1971-72 period when Roe was being decided.

Do these internal Court documents reveal the hidden source of abortion's constitutional and legal legitimacy? Hardly.

None of the justices claim there is a specific textual guarantee of abortion to be found anywhere in the constitutional document. Nor does the abortion claim find legitimacy within the background principles of common law out of which the American Constitution emerged. As Bracton records, and the draft opinions within the internal Marshall papers indicate the justices knew, abortion has little common law support, and was clearly thought by some to be homicide [II Bracton, On the Laws and Customs of England 341 (Thorne ed. 1968), a citation to which can be found in Justice Blackmun's fourth circulated draft in December 1972]. Because of the more rudimentary nature of science in the 18th and 19th centuries, the common law drew a distinction between abortions before and after quickening [16 to 18 weeks], but under English codification in 1803 both were criminal only in different degrees. When medical science advanced, the quickening distinction receded, and penalties for all abortions increased. In 1868, when the 14th Amendment was adopted, statutory prohibitions or restrictions on abortion were commonplace. Twenty-eight states of the then 37 and 8 territories banned or limited abortion, [J. Mohr, Abortion in America (1978)].

The Court's drafts also reveal that the decision was not being guided by ancient precepts of medical ethics. In this respect, the Hippocratic Oath, dating back three to four hundred years before three to four hundred years before Christ, had doctors pledging that they "will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner ... not give to a woman a pessary to produce abortion." [The fourth circulated draft of Justice Blackmun's opinion in Roe cites the Hippocratic Oath, but cavalierly dismisses it on the basis of academic writing that found it to be held as true only within Pythagorean Greek culture. Why the Pythagoreans should be so ill-treated, or deemed uninfluential, is not explained. Indeed, the Oath, which coincides with prevalent Christian belief since the end of antiquity, became the "nucleus" of medical ethics.]

But neither text, nor the common law, nor medical ethics as embodied in the Hippocratic Oath was to steer the Supreme Court in its discovery of a non-textual abortion right. What did guide the Court? I regret to say, little more than pragmatic, expedient politics; an exercise in judicial will, not judgment.

When Roe [and its companion case, Doe v. Bolton] were first argued in late 1971, there were only seven members of the Court. Justices Harlan and Black had both recently retired, and would shortly thereafter die. While many of us associate the abortion right with Roe's author, Justice Harry Blackmun, mid-December 1971 correspondence actually identifies William O. Douglas to be the strongest advocate for abortion as an extension of his earlier opinion in Griswold v. Connecticut, 381 U.S. 479 (1965), invalidating a Connecticut law limiting the use of artificial contraception [letter from William O. Douglas to Chief Justice Warren Burger, dated December 18, 1971]. Following oral argument, the justices discuss cases and take a straw vote. The senior justice in the majority [or the chief justice, if he is in the majority] then usually assigns the opinion writing. Chief Justice Burger reports that the discussion following the first [Roe] argument is so confused, that there are "literally not enough columns to mark up an accurate reflection of the voting" [letter from Warren Burger to William O. Douglas, dated December 20, 1971]. Out of experience, perhaps, Burger assigns the draft writing to Blackmun, his fellow Minnesotan. This infuriates Douglas, since Blackmun was perceived by Douglas as then favoring state abortion restriction. [Blackmun had been appointed to the Court by President Nixon about a year earlier.] By mid-January 1972, Blackmun had looked at the cases and finds the issue so unclear that he urges the chief justice to ask for re-argument in Beth Roe and Doe [letter from Harry Blackmun to Warren Burger, dated January 18, 1972].

Douglas steadfastly resists reargument. Matters drag on nonetheless and by mid-May 1972, Justice Blackmun tries to rid the Court of the issue on procedural grounds -- namely, that the Texas statute was too vague to be enforced. He writes, "I think that [vagueness] would be all that is necessary for disposition of the case, and that we need not get into the more complex Ninth Amendment issue" [memorandum to conference from Harry Blackmun, dated May 18, 1972]. This does not suit Justice Douglas, who argues that there are at least four votes [enough for a majority on an understaffed Court] that "an abortion [may] be performed by a licensed physician within a limited time after conception" [letter from William O. Douglas to Harry Blackmun, dated May 19, 1972]. Douglas must have talked with Justice Brennan, because at about the same time Brennan by letter gives his support for the abortion proposition in almost identical language; namely, that "an abortion be performed by a licensed physician within some limited time after conception" [letter from William Brennan to Harry Blackmun, dated May 18, 1972].

Several things are striking about this internal correspondence beyond, of course, Justice Blackmun's change of posture from assigned draftsman to abortion advocate and the overall bewilderment of the Court after the case was first argued. First, there is considerable internal pressure to get a decision, perhaps before new members of the Court might change the outcome. [Nixon appointees Lewis Powell and William Rehnquist replaced Black and Harlan: as it later turned out, Powell and Rehnquist split over the issue.] Douglas, in particular, seems especially agitated to push the opinions out, writing, "I feel very strongly that [Roe and Doe] should not be reargued.... I hope the 5 can agree to get the cases down this Term, so that we can spend our energies next Term on other matters" [letter from William O. Douglas to Harry Blackmun, dated May 31, 1972]. Second, the internal correspondence is almost completely devoid of what one could call constitutional argument. Instead of a careful examination of the common law or argumentation premised upon the textual provisions of the constitutional document, there is merely vote counting and assertion. Third, taking Justices Douglas and Brennan at their word, the initial four-person majority envisioned only a very narrowly worded abortion privilege -- one that would be confined to a limited time after conception. The last point is particularly striking in light of President Clinton's insupportable claim and recent veto that the abortion license formulated by the Court extends even to the most graphically hideous procedure and to the moment of birth.

By late May, Justice Blackmun had fully joined the Douglas-Brennan circle [which also included Potter Stewart and Thurgood Marshall] in favor of creating an abortion right [memorandum to the conference, dated May 31, 1972]. Justice Blackmun's memoranda reflect highly legislative considerations almost exclusively. For example, he proposes to invalidate most of the Georgia statute, except maybe those requiring an abortion to occur in a licensed and accredited hospital [memorandum to the conference from Harry. Blackmun. dated May 25, 1972]. Demonstrating that none of these specific invalidations were rooted in constitutional text or history, however, Justice Blackmun holds open the possibility, like a good legislative lobbyist, that maybe "some of you may wish to take that step, too [that is, allowing abortions outside hospitals]." [Id., the Court did take that step.] The particulars of the Court's legislative considerations still tangled, Justice Blackmun, at month's end, urges that Roe and Doe be reargued [memorandum to conference from Harry Blackmun, dated May 31, 1972]....

... Except for the exchange of personal opinion or medical speculation, there is no evidence of constitutional study or consideration. Only Chief Justice Burger attempts to anchor the discussion in the Constitution, expressing the patent federalism objection that "the states have ... as much concern in this area as in any within their province; federal power has only that which can be traced to a specific provision of the Constitution" [memorandum to the conference from Warren Burger, dated May 31, 1972]. There is little other argument or discussion in the internal correspondence touching upon the substance of constitutional law.

The cases were reargued in October 1972. In November, Harry Blackmun writes the final drafts of opinions that today we know rather infamously as Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). Again, no real discussion of law occurs in the internal deliberations; instead, there is the startling admission from Justice Blackmun in the presentation of his near final draft that "you will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary" [memorandum to conference from Harry Blackmun, dated November 21, 1972; emphasis added].

So, there you have it. A confession by the principal author of the most infamous decision in this century, and perhaps after Dred Scott, ever, revealing that arbitrary choice -- not discernment of the law of the land -- accounts for the result in Roe. Law, legal history, constitutional allocations of power, all ignored. The abortion right derives not from background principles of common law; not in the first principles of our constitutional republic; not as a result of careful parsing of constitutional text. The application of lethal force to the innocent unborn can be found neither in the records of the drafting of the 14th Amendment, nor the accounts of that Amendment's ratification. The respect due the structural reservation of health, safety and moral questions to the states under the 10th Amendment was forsaken as well.

It is upon this lawless foundation that the Court has authorized the "arbitrary" extermination of roughly 1.5 million unborn children each year, ever since. Indeed, the arbitrariness of the lifeline pulled from the grasping hands of the innocents in Roe is even more manifest in last-minute tinkering with the opinion. Between late November and the end of the year, Blackmun observes how he's thinking about moving what he called previously the "critical" line from the end of the first trimester to viability. He admits that he chose the end of the first trimester largely for marketing reasons, writing, "I selected the earlier point because I felt that it would be more easily accepted (by us as well as others) ..." [memorandum to the conference from Harry Blackmun, dated December 11, 1972]. He is hesitant, however, if moving the line would cost him votes on the merits ["I would be willing to recast the opinions at the later date (viability instead of the end of the first trimester), but I do not wish to do so if it would alientate any Justice who has expressed to me, either by writing or orally, that he is in general agreement, on the merits, with the circulated memorandum" (Id.)].

The viability line thus has no constitutional significance. It is Justice Blackmun's arbitrary choice. It is also a choice that reveals no consideration of the unborn child's interest, and virtually no acknowledgment of state legislative authority. Rather, the viability line ultimately gets chosen by the Court to simply maximize the opportunity for young women especially to undergo abortions. Justice Blackmun writes, "many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed" [memorandum to the conference from Harry Blackmun, dated December 11, 1972]....

... A few of the justices were squeamish. Justice Potter Stewart wonders "about the desirability of the dicta being quite so inflexibly `legislative,'" suggesting that he might extend to the states more latitude to make policy judgments [letter from Potter Stewart to Harry Blackmun, dated December 14, 1972]. The flexibility was not to be, though Justice Blackmun in a small concession urges that the "cases ... come down no later than the week of January 15 to tie in with the convening of most state legislatures" [memorandum to conference from Harry Blackmun, dated December 15, 1972]. A professional courtesy, perhaps, to fellow legislators.

Of course, a Court that engages in practices well beyond its Article III function to decide "cases or controversies" under the principles and usages of established law, needs its own press office to put, as political figures say today, the proper "spin" on matters. Writing that he "anticipate[s] the headlines that will be produced over the country when the abortion decisions are announced," Justice Blackmun prepares an eight-page press release personally [memorandum to the conference, with press attachment, from Harry Blackmun dated January 16, 1973].

Press release in place, the rest, as they say, is history -- a sad and tragic history that denies the sanctity of human life, not because the Constitution requires it, but because seven men decided to legislate from the bench -- and by their own admission, arbitrarily at that.