The Abortion Papers

EVER SINCE the Supreme Court issued its controversial abortion decision, Roe v. Wade, 16 years ago today, many legal scholars and millions of other critics have cried foul. They have argued that the court was legislating social policy and exceeding its authority as the interpreter, not the maker, of law.

New evidence has now surfaced that some of the justices who wrote and supported the opinion were doing precisely that, in at least part of the decision. The opinion's author, Justice Harry A. Blackmun, said in one internal court memo that he was drawing "arbitrary" lines about the times during pregnancy when a woman could legally receive an abortion. In another memo, Justice Potter Stewart, who joined the Blackmun opinion, said the determination in the opinion about these lines was "legislative."

The Roe v. Wade memos were found among the personal papers of the late Justice William O. Douglas, which became available to the public at the Library of Congress last year. They provide an unusual window on the private deliberations among the justices as they debated one of the most controversial cases of the 20th century. And they provide a useful guide to some of the issues that are likely to arise this year when the court hears a Missouri case that tests Roe once more.

Critics of the 7-to-2 decision say the new memos support their arguments that the court was acting as a legislature in the abortion decision and that the ruling stands on shaky constitutional ground. Douglas Johnson, legislative director for the National Right to Life Committee, said the documents are "like memos from members of a congressional committee drafting a bill. Just one more additional piece of evidence that Roe v. Wade represented social engineering by the court."

Supporters of Roe note that the documents address only the portion of the Roe opinion that draws lines around the various stages of pregnancy and do not refer to the centerpiece of Roe, the conclusion that there is a fundamental right to an abortion squarely based on various constitutional rights of privacy.

These Roe supporters also say that once the court defines a new right, it frequently attempts to provide useful guidance to the legislatures about what laws will pass constitutional tests. In the 1966 Miranda case, for example, the court spelled out the specific right-to-an-attorney warning that the police have to give to those who are arrested.

"Whatever they decided was going to be arbitrary, once they decided they had to balance this right to an abortion with the countervailing rights of the potential life [of the unborn fetus]," said George Frampton, a former law clerk to Blackmun.

The court in 1973, headed by Chief Justice Warren Burger, faced a dilemma as it considered the abortion case. A clear majority felt that abortions in the early months of pregnancy should be permitted but that there was certainly a point in the later months when the fetus, not the mother, deserved constitutional protection. Where to draw the line?

By all accounts Blackmun tried hard to find a clear legal argument to justify drawing the line. He searched through the common law, the precedents, medical books and the positions of various medical organizations -- looking for guidance. There were no clear legal or scientific guideposts, so he drafted his opinion more on the basis of logic, medical knowledge, perceived social necessity and the assembled convictions of his colleagues.

In one internal memorandum dated Nov. 21, 1972, two months before the decision was issued, Blackmun told the other justices that the task of drafting the opinion "has proved for me to be both difficult and elusive . . . ." Particularly difficult was the problem of balancing the rights of the woman and the competing government interest in protecting health and preserving the potential life of an unborn child during the later months of pregnancy.

Blackmun said in his memo to the other justices that he had determined to set the cutoff at the first trimester, or first 13 weeks of pregnancy. "This is arbitrary," he said, starkly acknowledging his problem. "But perhaps any other selected point, such as quickening or viability (of the fetus), is equally arbitrary."

("Quickening," a term describing fetal movement, usually occurs between the 16th and 18th weeks of pregnancy. "Viability," or ability to live outside the mother's womb, is usually placed at between 24 and 28 weeks.)

Blackmun's use of the term "arbitrary" was unusual even in a confidential memo, according to half a dozen legal experts who were read portions of the Roe memos. None of these experts could recall reading such a statement in internal communications among the justices or published court opinions.

In the final published opinion, Blackmun, far from acknowledging the "arbitrary" aspect of his ruling, wrote that the woman's right to an abortion is "compelling" and prevails up "to approximately the end of the first trimester."

In his Nov. 21 memo, Blackmun also said that his draft opinion "contains dictum" -- a legal term for explanatory language not essential to the ruling -- "but I suspect that in this area some dictum is indicated and not to be avoided." He is, in effect, acknowledging that some of the analysis in the lengthy opinion is not strictly necessary on legal grounds. Of course, judges and justices never identify the "dictum" in their opinions, and what's essential is often a subject of debate in legal circles.

Justice Stewart, one of the six members of the court to join Blackmun's majority opinion, discussed this issue in a Dec. 14, 1972 internal memo. He told Blackmun and the other justices that he believed that the first-trimester demarcation line amounted to dictum.

"One of my concerns with your opinion as presently written," Stewart said, "is the specificity of its dictum -- particularly in its fixing of the end of the first trimester as the critical point for valid state action. I appreciate the inevitability and indeed wisdom of dicta in the Court's opinion, but I wonder about the desirability of the dicta being quite so inflexibly 'legislative.'"

Blackmun responded by inserting the word "approximately" before the phrase "the end of the first trimester," thus apparently giving it more flexibility.

Justice Thurgood Marshall, also a member of the majority supporting the decision, appeared concerned that Blackmun, by focusing on the end of the first 13 weeks of pregnancy, was allowing the states too much control immediately after the first trimester.

In a memo dated Dec. 12, 1972, Marshall replied to Blackmun's proposal:

"Dear Harry: I am inclined to agree that drawing the line at viability accommodates the interest at stake better than drawing it at the end of the first trimester. Given the difficulties which many women may have in believing that they are pregnant and in deciding to seek an abortion, I fear that the earlier date may not in practice serve the interest of those women, which your opinion does seek to serve."

"At the same time, however, I share your concern for recognizing the State's interest in insuring that abortions be done under safe conditions. If the opinion stated explicitly that, between the end of the first trimester and viability, state regulations directed at health and safely alone were permissible, I believe that those concerns would be adequately met."

Blackmun changed the opinion somewhat to accommodate Marshall's concerns, saying that after approximately the first trimester, the states could regulate abortion to protect the health of the mother.

Charles Cooper, who until recently was head of the Justice Department's Office of Legal Counsel and who opposes Roe v. Wade, said "it is interesting that [Blackmun] concedes that it is arbitrary. They are discussing the trimester reasoning as dictum," Cooper said. But if it is dictum, "it has become the most binding dictum in history."

Cooper, who clerked for Chief Justice William H. Rehnquist, then an associate justice and a dissenter in Roe, said Marshall's memo "contains no reference to anything that could be remotely characterized as a legal argument as opposed to policy considerations. His concerns are legislative and the discussion is not a constitutional discussion."

The documents are not "a real revelation," he said. But they "put in context" Justice Byron R. White's strong dissent in 1973 saying that what the court did in Roe was an exercise in "raw judicial power."

"Everyone in the Supreme Court, all the justices, all the law clerks knew it was 'legislative' or 'arbitrary,'" said Geoffrey R. Stone, currently the dean of the University of Chicago Law School. At the time of the 1973 abortion decision, he was a law clerk to Justice William J. Brennan Jr., who joined the majority opinion.

"Obviously on the face of the opinion it is 'arbitrary,' a word that has negative connotations, but it shouldn't . . . ," explained Stone. "It was a matter of common discussion, but in context the court was anticipating the uncertainty and ambiguity that would result if the line were not drawn. Instead of waiting five to 10 years as cases came up, they wrote a rule.

"The court often draws lines, for example on the waiting period on voting rights laws . . . . It was an effort to deal with a social problem in a perfectly acceptable way."

Robert H. Bork, a former U.S. Circuit Court judge and a longtime critic of the abortion decision, said he found the memos "interesting . . . [but] it doesn't shock me . . . . Once the court takes on this area, this is precisely what you get. It was wrong to get into the subject, but once you do you have to have a line."

Bork added: "I'm surprised that Bill Douglas left [his papers] open to be publicly available so soon."

The Reagan administration argued that the court was wrong in the Roe decision and should correct itself. The justices, however, are generally reluctant to overturn rulings by a previous majority -- and the abortion decision had seven of the nine votes. And under the doctrine of stare decisis -- "because it was decided" -- one group of justices tends to accept the previous rulings of an earlier group. These traditions are based on the idea that every previous court majority going back more than 200 years has correctly read the Constitution.

Nonetheless, it is generally believed that four current members of the court want to overturn Roe, and that the newest arrival, Justice Anthony Kennedy, may provide the needed fifth vote. Other court experts believe that the justices may be sensitive to the social disruption that would occur from a wholesale reversal of Roe. Today, well over a million women a year receive legal abortions.

Legal criticism of Roe v. Wade certainly isn't new. Scott Armstrong and I reported in our 1979 book "The Brethren" that many of the 1973-era law clerks were surprised to see the justices accepting an opinion that reflected medical and social policy rather than constitutional law. Within the court, some called the opinion itself an "abortion." But while writing the book, we did not have access to the newly released memos showing Blackmun and Stewart explicitly talking about "arbitrary" or "legislative" decision-making.

The "legislative" issue is important because it goes to the heart of the court's authority and legitimacy. The Constitution confers the federal legislative power exclusively to the Congress, so any discussion, even in internal memos, about the justices' "legislative" purposes takes the court onto perilous ground.

The authority of the Supreme Court rests in large part on the public belief that its rulings, no matter how controversial, reflect enduring and permanent constitutional values, that its conclusions are not arbitrary and that the justices, who are appointed for life, work above the political fray.

Blackmun said in his Nov. 21, 1972 memo, "It has been an interesting assignment. As I stated in conference, the decision, however made, will probably result in the Court's being severely criticized." At the time, Blackmun probably could not imagine that the contentiousness would linger so long after the high court had issued its final ruling.

Bob Woodward, an assistant managing editor of The Washington Post, is co-author of the 1979 book on the Supreme Court, "The Brethren." Staff researcher William F. Powers Jr. also contributed to this article.

Copyright 1989 The Washington Post