Justice Blackmun’s Documents Show Roe v. Wade Almost Fell in 1992
by Steven Ertelt
March 4, 2004
Washington, DC (LifeNews.com) — The papers of former Supreme Court Justice Harry Blackmun, author of the infamous Roe v. Wade decision that legalized abortion, have been opened to the public. The New York Times, which was given first access to the materials, reports that the Roe decision almost fell until Justice Kennedy changed his mind and approached Blackmun with the idea to uphold parts of a pro-life law while keeping Roe’s framework intact.
According to the Times, Blackmun feared the Roe decision would fall when the Court prepared to heard the case of Casey v. Planned Parenthood, which saw the abortion business take on a pro-life Pennsylvania law limiting abortions.
Then, a letter came to Blackmun from Justice Anthony Kennedy saying he had "welcome news."
Chief Justice William Rehnquist had assembled a group of five justices, including Kennedy, who were ready to overturn Roe. Justices Byron White, who dissented in Roe along with Rehnquist, Antonin Scalia, and Clarence Thomas joined Rehnquist in toppling the pro-abortion case.
The court had decided the Casey decision and Rehnquist was hard at work on writing the majority opinion. Then Kennedy backed out.
After meeting with Kennedy a short time later the Times reports, Blackmun grabbed a memo pad and wrote, "Roe sound."
Nothing in the Blackmun files reveals why Kennedy changed his mind.
Kennedy later joined Rehnquist, Thomas and Scalia in dissenting in the 2000 Carhart vs. Stenberg decision that overturned a Nebraska ban on partial-birth abortions.
Some court observers, and pro-abortion groups, have interpreted his dissent as meaning he is ready now to overturn Roe and that pro-life advocates are one vote away from doing so.
However, in the Carhart case, "Kennedy did not retreat from his 1992 reaffirmation of Roe as guaranteeing legal access to abortion for any reason up to ‘viability,’" explains Douglas Johnson, legislative director for the National Right to Life Committee.
Blackmun kept thousands of notes, memos and papers that are beginning to reveal some of the behind-the-scenes decision-making at the nation’s high court.
Some of the boxes of memos contain numerous drafts of the Casey decision with marginal notes showing where sometimes Blackmun agreed with his colleagues and, other times, hoping to change their minds on pivotal issues.
As the former legal counsel to the Mayo Clinic, Blackmun appeared to have fell victim of the fallacy that thousands of women died from botched illegal abortions prior to Roe. He viewed the illegality of abortion as a threat to good medical practice, despite the fact that women have been killed and injured by abortion since legalization.
The seeds for Blackmun’s defense of abortion as a "privacy right" were sewn years before Roe, according to the Times.
Memos the justice wrote to himself prior to the case of United States v. Vuitch, a challenge to the District of Columbia’s statute banning abortions, shows he was ready to frame a right to abortion under the privacy rubric. The high court ultimately decided the 1971 case without addressing the constitutional issue of abortion’s legality.
"Here we go in the abortion field," Blackmun wrote in a self-memo acknowledging that the Supreme Court would soon render a landmark decision on the issue.
Blackmun discussed the privacy rights granted for birth control, in the Griswald vs. Connecticut case, and the privacy possession of pornography.
These cases "afford potent precedence in the privacy field," he wrote, adding: "I may have to push myself a bit, but I would not be offended by the extension of privacy concepts to the point presented in the present case."
Yet, Blackmun later writes that the Roe case almost didn’t get a hearing, the Times reports: "I don’t know why we didn’t set it aside. I think probably the implication, the obvious implication, is that we didn’t think it was that important at that time."
Regardless of the background scenes that led to the Roe decision, the pro-life community will continue to fight it and seek to overturn what is called the worst Supreme Court decision in history.
"[S]even justices took it upon themselves to operate as a super-legislature, effectively amending the Constitution in order to achieve the policy result they desired, which was legalized abortion on demand," NRLC’s Johnson says.
"They negotiated over the scope of the right that they were inventing, and then argued over what language in the Constitution they could use to justify their policy," Johnson added. "The memoranda between justices that were released with the Marshall papers read like memos among the staffers on a congressional committee, drafting a statute."