The Roberts Court and Roe v. Wade

Could the new Court issue a different ruling?

By Alexander Marlow
From the November 2005 Print Edition

We are at the threshold of a new judicial era in America, as the Roberts Court is formally underway with a new, fresh face. Whenever the Court takes on a new persona, there is one question that always arises: “Is Roe v. Wade safe?” Considering how polarizing the case is, it will never be “safe” in the sense that it will be criticized and debated until the day God descends from Heaven and proclaims, “Life does not begin until the fetus is viable outside the womb!” Of course, if God said, “Life begins at conception,” atheists and leftists would manage to debate the issue anyway. I attend church weekly, and considering I have not heard much talk of the Messiah making an appearance anytime soon, we should probably take a rare, balanced look at the origins of the case and how our new Court will deal with this daunting behemoth.

Let’s take a brief headcount of the current Court members and where they stand. We have four lost-liberal causes in John Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Antonin Scalia and Clarence Thomas are considered staunch conservatives, and Anthony Kennedy, Chief Justice Roberts, and possible Justice Harriet Miers are all very religious. This could pose a scenario where the Supreme Court may want to hear Roe v. Wade again.

That brings me to my next question: Is that a bad thing? Obviously, if you believe that abortion should be “legal under all circumstances” — as 23 percent of the country does, according to a Gallup poll — then yes, it is. If you happen to belong to the 22 percent that believe that abortion should be “illegal under all circumstances,” then you probably want nothing more than for Roe to come into question again. However, if you are like the majority of Americans who feel that abortion should be “legal only under certain circumstances,” before you cast judgment on Roe v. Wade, it is important to know the history of how this case was decided.

There is overwhelming evidence that the justices of the Supreme Court did not consider Roe v. Wade a particularly important case and did not give it the attention that it deserved. They had Harry Blackmun, a first-year justice and President Nixon’s third choice for the appointment, write not only the opinion on Roe but also the opinion for Doe v. Bolton, which was decided on the same day. The other justices did not offer Blackmun much help, so it was up to him and his clerks to do all of the research for two cases simultaneously.

The Doe case was actually considered more significant than Roe because in that case, Blackmun gave doctors permission to administer abortions to protect a woman’s “emotional” health. This broad definition would allow doctors to perform abortions whenever they wanted.

The court was also preoccupied at the time with a historic case on the death penalty, which they struck down in January of 1972.

Blackmun’s first draft was short and was designed to give the states an opportunity to finalize their own laws. The main objective was to protect doctors. Chief Justice Warren E. Burger was underwhelmed by both the opinion and the original arguments that were made while Court was in session, so he decided to postpone the case until two new justices, William Rehnquist and Lewis Franklin Powell, Jr., had been approved.

Justice Powell, the rookie, now sought out Blackmun to discuss the issue. Powell, a soft-spoken Virginian, had close ties to abortion. An emotional young man once approached him in Richmond and said that he and his pregnant girlfriend tried to abort their child and she bled to death. Powell wanted Blackmun to directly approve abortions; Blackmun did just that.

The decisions on Roe v. Wade and Doe v. Bolton were handed down on January 22, 1973, and in both instances a 7-2 majority struck down the states’ abortion laws.

Chief Justice Burger said that he did not believe the decision would have “sweeping consequences.” He also suggested that Roe be re-examined at some point in the future.

When one looks at the way it was decided, it is apparent that the consequences of the decision were leaps and bounds from the intent of the Court. The Court was not focused on the case and did not anticipate what widespread effects the decision would have. Blackmun was new to the Court, and neither he nor chief justice Burger ever dreamed of abortion on demand.

Perhaps, with the dawn of a new Court in the United States, we may hear Roe v. Wade again and it may be overturned. The final decision concerning abortion would return to where it should have been all along: to the states. Then, regardless of what America decides, the legality or illegality of abortion will be legitimized for the first time in over 30 years.

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