How 'Roe v. Wade' Came To Be Vilified By Some Legal Scholars

Time will tell if Gorsuch is going to be a crucial vote to close the door on 'Roe v. Wade.'
Bench Memo from Justice Powell’s Law Clerk, Larry Hammond, before the second oral argument in Roe v. Wade in October 1972. Powell wrote: “good memo”

Judge Neil Gorsuch, President Trump’s Supreme Court nominee, told the Senate Judiciary Committee during his confirmation hearings that if President Trump had asked him to overrule Roe v. Wade, he would have “walked out the door.” But his evasive answers on whether he would adhere to the established abortion precedent (Senator Feinstein called it “super-precedent”) leaves open the question of whether Judge Gorsuch will in fact be a vote to overturn the controversial 1973 decision.

Candidate Trump promised to select justices who will dismantle Roe v. Wade, and while Judge Gorsuch has never faced a case involving abortion, some have read the tea leaves of his pro-religious rulings in the Hobby Lobby case as an indicator he may be hostile to a woman’s right to choose.

Certainly other judges on President Trump’s list of potential Supreme Court nominees are openly antagonistic to Roe v. Wade. Judge William Pryor of the 11th US Circuit Court of Appeals once called the high court’s decision the “worst abomination in the history of constitutional law.”

With the ages of three sitting justices becoming a concern (Justices Kennedy is 80, Justice Breyer is 78, and Justice Ginsburg just turned 84), there is reason to think another spot, or perhaps several, could open up during President Trump’s first term.

Roe v. Wade is in trouble, make no mistake.

So how did Roe v. Wade become such an “abomination” to so many citizens, judges and legal scholars? As with many divisive questions in American history, good intentions, once given the force of federal law, come to be seen as tyrannical by those who disagree. In the case of Roe v. Wade, the Supreme Court’s edict on abortion, some argue, took from citizens the right to participate in a decision that they believe is a life-and-death matter.

Legal scholars attacked Roe from the start as lacking any basis in the Constitution. A respected professor at Yale Law School, John Hart Ely, wrote a scathing and influential article, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” the year Roe v. Wade was decided.

The legal arguments against Roe are long and convoluted but in essence assert that the “right of privacy” at the core of Roe is, quite simply, made up ― fashioned from whole cloth out of the due process clause in 14th Amendment and certain parts of the Bill of Rights. And even if such a right of privacy does exist, opponents argue, it was applied with an indefensibly broad brush by the Supreme Court in Roe v. Wade.

So how did we get here? The backstory of Roe v. Wade – how it was actually decided – is not well known. Understanding the behind-the-scene deliberations illuminates many of the criticisms of the opinion and helps to crystallize thinking whether one is in favor of Roe or opposed to it.

The first question is: When does life begin?

Americans disagree on this question; they always have and always will. Because there was no consensus in 1973, the Court felt the decision should be a personal one between a woman and her doctor. But to get to this result, the Court still had to draw lines and this is where the opponents of Roe think the Court overstepped its bounds.

Justice Blackmun, who was the principal author of Roe, penned the first drafts of opinions in Roe and a related Georgia case, Doe v. Bolton, in May 1972. Blackmun’s first drafts would have recognized a woman’s right to an abortion, but left it to others (read state legislatures) or later cases to define when the a state could protect fetal life by prohibiting abortions. These early drafts were circulated and found a majority in June 1972 and probably should have come down. In fact, Justice William O. Douglas wrote a blistering dissent (never made known to the public) when the Court decided to re-argue the cases rather than release Blackmun’s opinions. Douglas felt the Court had decided the cases.

If Blackmun’s first drafts had become the law, it is likely a very different political landscape would have emerged. Perhaps the reaction over time would not have been as sharp.

But for complicated reasons, Chief Justice Warren Burger wanted to re-argue the cases with two new Justices who had been appointed by President Richard Nixon ― William Rehnquist and Lewis Powell ― both expected to be conservative voters. Justice Powell, however, surprised many when he decided after the second oral argument ― with the guidance of his law clerk, Larry Hammond ― that he would vote in favor of striking down the Texas abortion law.

The central question still remained: When does life begin and when could a state forbid an abortion? Here is where Powell’s law clerk intervened and suggested that the dividing line should be fetal viability. That is, the state could regulate abortions on behalf of the life of the fetus only when the fetus could survive outside the womb (with limited exceptions).

What is remarkable is that viability had been argued by no one. It arose because Hammond (and other law clerks) thought that if the cutoff point was set at an earlier time in the pregnancy ― after the first trimester, for example ― the right might pass before it could be exercised by the woman. “For many poor, or frightened, or uneducated, or unsophisticated girls,” Hammond wrote to Powell in an unpublished bench memo, “the decision to seek help may not occur within the first 12 weeks.” Hence, the good intentions.

Given this problem, Hammond and others on the Court felt that the only dividing line upon which all could agree was viability. No one could argue, they reasoned, that if a fetus could survive outside the womb, a state could not prohibit an abortion.

This expansion of the right all the way to the end of the sixth month of pregnancy is arguably what caused the eventual backlash. Had the issue been settled in legislatures or had a Court found some earlier point, the reaction, including the rise of the Religious Right and later the Tea Party (most members are politically active evangelicals), may have been much more muted. Many disagree with this premise (see a thoughtful Yale Law Review article by Linda Greenhouse and Reva Siegel entitled, “Before (and After) Roe v. Wade: New Questions About Backlash”), but there is little question that Roe helped to trigger a new, hyper-divisive era in American politics.

The reaction to Roe was not immediate; it gathered strength over time. The difficulty became that the idea of “no compromise” entered our political bloodstream. Whereas politicians once saw opponents as wrongheaded, now they portrayed them as evil, people with whom no deal could or should be made or imagined.

Checks and balances became checks only.

Roe v. Wade has survived many challenges, but the time may have arrived when a determined president will place justices on the Supreme Court who will demand that Roe be overturned. The long-simmering backlash against Roe, rightly or wrongly, may be the thing that results in its undoing. Judge Gorsuch did not have to “walk out the door,” but time will tell if he is going to be a crucial vote to close the door on Roe v. Wade should he win the appointment. It is a time of great consequence for all concerned.

James D. Robenalt is the author of January 1973, Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever (Chicago Review Press, 2015); He interviewed Larry Hammond for his book.