Roe vs. Wade Almost Overturned in 1992

[Brown]

According to the papers of late Justice Harry Blackmun, author of the famous Roe vs. Wade opinion, the Roe decision was nearly overturned in 1992. From the Washington Post (registration required):

Blackmun's notes show that Chief Justice William H. Rehnquist led a five-justice majority to overrule Roe. Four other justices voting with Rehnquist were Byron White, Antonin Scalia, Clarence Thomas and Kennedy. Rehnquist himself was to write the majority opinion.

Unbeknownst to him, Kennedy was having second thoughts, and agreed with Justices Sandra Day O'Connor and David Souter, to a compromise position.

The lead sentence of the article says that Justice Kennedy "got cold feet," which is a rather uncomplimentary remark and is probably untrue. It is not unusual for a judge to view an issue one way, and then on closer examination come to a different view.

 

[shecky]

This is quite remarkable. Anyone have the scoop on Planned Parenthood v. Casey? I don't recall.

 

[Nova Land]

Planned Parenthood vs Casey, a quick overview:

Bob Casey was the governor of PA. During his term of office he pushed for, and succeeded in getting passed, the Pennsylvania Abortion Control Act, the law at the heart of the case. Instead of outright outlawing abortion, the bill put a number of restrictions on abortion -- the three I think I recall were parental consent for minors, spousal consent for married women, and a 24-hour waiting period (during which the woman was supposed to think over state-mandated information the clinics would be required to provide).

It was widely expected that the Supreme Court would use this case to overturn Roe. Instead, the Supreme Court upheld most of the restrictions (with the exception of spousal consent) but also upheld the basic idea of Roe. The line the Court majority took was that a woman had a right to abortion but the State could put restrictions on that right so long as the restrictions were not too burdensome.

Just how burdensome the restrictions could be was left unclear by the decision -- the 24-hour waiting period was considered a pretty big deal at the time, not only for the time and financial burdens it imposed on women who had to take time off from work and travel across the state but also because it gave the protesters a chance to identify them (through their license plates) when they came in for the first appointment but also meant the woman had to go through the gauntlet not once but twice -- an intimidating experience.

In the years following, my recollection is that abortion opponents were able to get similar restrictions (parental consent, 24-hour waiting periods) in a number of states but that courts have generally blocked the more blatant attempts to end abortion through super-regulation.

To put this in its historical context, this happened about the time that Operation Rescue (which had generated a lot of excitement in the late 1980s among people trying to stop abortion) was imploding. Legislative strategies such as the PA Abortion Control Act were one of the other avenues people were trying. The failure of the Supreme Court to use Casey to overturn Roe was a major disappointment, and the election soon after of Bill Clinton made the chance of getting the decision they wanted even more unlikely.

 

[specious_reasons]

I didn't catch all of it, but Nina Totenberg did a piece on this on NPR.

That's probably the source for the Post article, since NPR was touting her exclusive access to the archives.

 

[Luke T.]

Well, the original "Jane Roe," Norma McCorvey, in Roe v. Wade, has since gotten religion and regretted being a part of the whole abortion legalization process. Having a zillion dead babies on your conscience must really suck.

 

[Brown]

I didn't catch all of it, but Nina Totenberg did a piece on this on NPR.

That's probably the source for the Post article, since NPR was touting her exclusive access to the archives.

You are correct, Totenberg was the source of the Post report. She did not get exclusive access, however. She got early access. She got to see the documents on March 3, and all the rest of the media schmucks got to see them on March 4. So NPR got a "scoop," in that one of the big surprises in Blackmun's files got reported first on NPR.

There's probably quite a few other surprises in the documents, possibly some of them unflattering to the current members of the Court. Preliminary indications in the New York Times are that Warren Burger (who like Blackmun came from Minnesota) may not have been a very good chief justice, and that William Rehnquist has been better in that role.

 

[Hexxenhammer]

I heard the NPR piece. It was fascinating. A real behind the scenes look at how the supreme court works. Also neat was a part about Kennedy (I think, but maybe it was Scalia) going to write his opinion in favor of school prayer and then realizing that he couldn't make it work. So he changed his vote.

 

[specious_reasons]

Well, the original "Jane Roe," Norma McCorvey, in Roe v. Wade, has since gotten religion and regretted being a part of the whole abortion legalization process. Having a zillion dead babies on your conscience must really suck.

It's amusing to see what works you up, Luke.

Also ironic is that Kennedy was more concerned about his own skin than the hyperbolic zillion babies. Evidently, there was meeting between Blackmun and Kennedy where Kennedy asked Blackmun about handling the threats to his life after Roe v. Wade.

 

[Brown]

Also neat was a part about Kennedy (I think, but maybe it was Scalia) going to write his opinion in favor of school prayer and then realizing that he couldn't make it work. So he changed his vote.

It was Kennedy.

It would be a very pleasant surprise if documents surfaced showing that Scalia could be persuaded to change his vote on a major issue. The conventional wisdom is that Justice Scalia thinks he's right every single time, and that it is his function to persuade others rather than to be persuaded himself.

 

[specious_reasons]

I heard the NPR piece. It was fascinating. A real behind the scenes look at how the supreme court works. Also neat was a part about Kennedy (I think, but maybe it was Scalia) going to write his opinion in favor of school prayer and then realizing that he couldn't make it work. So he changed his vote.

What I took away from the story: Kennedy seems more rational than I originally thought.

 

[Luke T.]

It's amusing to see what works you up, Luke.

Also ironic is that Kennedy was more concerned about his own skin than the hyperbolic zillion babies. Evidently, there was meeting between Blackmun and Kennedy where Kennedy asked Blackmun about handling the threats to his life after Roe v. Wade.

Yes, abortion works me up. Especially now that I have three kids. When we found out my wife was going to have twins, there was a certain amount of fear involved at the "inconvenience." And when we found out she was pregnant again, totally unplanned, there was even more fear at the "inconvenience."

That is the primary motive behind the millions and millions of abortions in the world. Inconvenience. Not rape or incest or defects.

I was shocked at who some of the people were that asked my wife upon hearing the news of her second pregnancy if she was going to get an abortion. That was their first reaction!

When I look at my kids faces now, I don't feel inconvenienced, even though we are barely surviving financially and I am working at a job I absolutely detest to keep the money coming in. I feel like the luckiest man alive. And I feel lucky I married a woman who feels the same way about it that I do. And I get angry at people who think we should have killed our kids instead. For what? A better car?

 

[Tricky]

Well, the original "Jane Roe," Norma McCorvey, in Roe v. Wade, has since gotten religion and regretted being a part of the whole abortion legalization process. Having a zillion dead babies on your conscience must really suck.

She need only have one dead fetus on her conscience. The rest of the aborted fetuses (not babies) were not her decision. But it is the height hypocrisy of trying to deny others the choice that she wanted badly enough to bring it to the Supreme Court, because she regrets her decision later.

 

[specious_reasons]

Sorry, I was a bit flippant given the subject.

Friends of mine just had to go through the heart-wrenching decision to terminate a pregnancy, rather than let her suffer in the womb and live a tragically short, bitter life, if she even survived to term.

They were giving her a mercy, rather than considering her an inconvenience. I, personally, am glad they had that choice.

Get angry if you want, but having the choice is the right thing in my mind.

Yes, abortion works me up. Especially now that I have three kids. When we found out my wife was going to have twins, there was a certain amount of fear involved at the "inconvenience." And when we found out she was pregnant again, totally unplanned, there was even more fear at the "inconvenience."

That is the primary motive behind the millions and millions of abortions in the world. Inconvenience. Not rape or incest or defects.

I was shocked at who some of the people were that asked my wife upon hearing the news of her second pregnancy if she was going to get an abortion. That was their first reaction!

When I look at my kids faces now, I don't feel inconvenienced, even though we are barely surviving financially and I am working at a job I absolutely detest to keep the money coming in. I feel like the luckiest man alive. And I feel lucky I married a woman who feels the same way about it that I do. And I get angry at people who think we should have killed our kids instead. For what? A better car?

 

[Grammatron]

And I get angry at people who think we should have killed our kids instead. For what? A better car?

Well if you are starting from the point of it being murder/killing it's hard to argue that since I'm rather sure it stems from your religious beliefs.

What about people who have can barely afford to have their current kids, abortion would be a reasonable solution to a potential problem for the entire family. Yes it's kind of bad for me to call a would-be child a potential problem but that's not where I believe life begins. And if adoption worked, that would be great, but it unfortunately does not.

 

[Luke T.]

She need only have one dead fetus on her conscience. The rest of the aborted fetuses (not babies) were not her decision. But it is the height hypocrisy of trying to deny others the choice that she wanted badly enough to bring it to the Supreme Court, because she regrets her decision later.

I think the "choice" was made prior to the act which led to the pregnancy.

 

[Luke T.]

Well if you are starting from the point of it being murder/killing it's hard to argue that since I'm rather sure it stems from your religious beliefs.

It is not a religious belief. Just a moral one.

What about people who have can barely afford to have their current kids, abortion would be a reasonable solution to a potential problem for the entire family. Yes it's kind of bad for me to call a would-be child a potential problem but that's not where I believe life begins. And if adoption worked, that would be great, but it unfortunately does not.

Our third kid was a huge financial burden. I was unemployed at the time. It doesn't get more inconvenient than that. We were living on government cheese, for chrissakes.

edited to add: Abortion is a permenant solution to a temporary problem.

 

[Ladyhawk]

When I look at my kids faces now, I don't feel inconvenienced, even though we are barely surviving financially and I am working at a job I absolutely detest to keep the money coming in. I feel like the luckiest man alive. And I feel lucky I married a woman who feels the same way about it that I do. And I get angry at people who think we should have killed our kids instead. For what? A better car?

People who say or suggest such things to you and your wife are cold and insensitive people. But, please remember, Luke...at least you and your wife had a choice to keep the child or terminate the pregnancy. I am not pro-abortion. I am pro-Choice. Every person has to make their own decision about being a parent and the government should not have the right to mandate parenthood...or, more accurately, motherhood since our society typically lets dad skate if he wants to...

 

[Grammatron]

It is not a religious belief. Just a moral one.

Then I retract my statement.

Our third kid was a huge financial burden. I was unemployed at the time. It doesn't get more inconvenient than that. We were living on government cheese, for chrissakes.

Just out of curiosity and please feel free to tell me to mind my own damn business, after having the twins did you and your wife plan on having any more kids in the future?

edited to add: Abortion is a permenant solution to a temporary problem.

Unless the funds problem causes you to neglect all the children which may cause a permanent problem with them.

 

[Ladyhawk]

I think the "choice" was made prior to the act which led to the pregnancy.

Gotta take issue with you on this one, Luke. Not all methods of birth control are 100% effective. Condoms, for all practical purposes, should be, but we know how quick men are to don those Now, I know what some are going to say. "Well, then, she should refuse to put out until he does" to which I would respond, where is it written that a woman's sexual drive is any less compelling or overwhelming than a man's? Why should the burden of responsible behavior always rest on the woman's shoulders?

The Pill is very effective (98%?) but carries long term health risks making it a short term solution at best. Having been in that boat myself, I took the most drastic solution: tubal ligation. But, I don't think that's a reasonable option for all women any more than a vasectomy is for men.

Therefore, until there is a completely safe and effective method of birth control that can be utilized by men and/or women for the length of their productive years, abortion is an unfortunate necessity.

 

[Luke T.]

Just out of curiosity and please feel free to tell me to mind my own damn business, after having the twins did you and your wife plan on having any more kids in the future?

No. One of us was going to get fixed. We hadn't decided which one.