Then Ginsburg surprised many followers by attacking Roe v. Wade in terms strikingly similar to O’Connor’s 1983 dissent in the Akron case. Like O’Connor, Ginsburg strongly criticized Justice Blackmun’s opinion in Roe for prescribing a time-based framework to govern all abortion matters. She would have struck the specific Texas law at issue in Roe, which made all abortions criminal. Although Ginsburg did not specify which restrictions, if any, she would allow, she suggested the Court should have taken a passive posture, waiting to see what the states did. Had O’Connor had the votes, the Court would similarly have waited to see if the states did anything to unduly burden the right to abortion. So Ginsburg and O’Connor were in agreement on what the Court’s procedures should be, if not on what would be allowed.
Unlike O’Connor, who, after Hogan, rarely articulated the social meaning of her decisions about women, Ginsburg strongly suggested that women’s equality was the justification for protecting abortion rights. Women must control their reproduction in order to achieve legal and social equality. In Ginsburg’s analysis, abortion rights would be securely anchored with the other women’s rights she had achieved, in the equality language of the Fourteenth Amendment, not in some free-floating notion of privacy. Regardless of whether the state is interested in the fetus from the moment of conception, women’s lives would be put on the other side of the scale. If women need abortion rights to achieve equality, it is difficult to envision what restrictions the state could legally impose, except those that serve the interests of women’s health itself, such as requiring practitioners to be trained or licensed. Certainly the Court could not approve the restrictions O’Connor defended, such as making women listen to speeches and then wait for their abortions or making young women get permission from their parents. All those restrictions are designed to steer women away from abortions; under O’Connor’s analysis anything short of making it impossible—driving women to coat hangers or foreign shores—is acceptable. Under Ginsburg’s robust vision of women’s lives, it is the unfettered right to make the decision that is central to a woman’s equality. Telling her what to do is the core violation.
ABORTION BATTLES IN THE CULTURE WARS
In a devilish way, Ginsburg got her wish. Starting as early as the election of 1972, abortion was recognized as a skirmish in the battle over women’s equality and, more broadly, as part of a war over competing concepts of American culture. The prescient antifeminist Phyllis Schlafly recognized the relationship early on and tarred abortion with the brush used on the Equal Rights Amendment—as a threat to the conventional family. The conservative revival picked up Schlafly’s framing and her powerhouse alliance among Catholics, fundamentalist Protestants, and Orthodox Jews. They added abortion to the list of ominous cultural changes—gay rights, moral relativism, declining patriotism. When the New Right came into ascendancy in the Republican Party, formally with the election of Ronald Reagan in 1980, they inserted an explicit plank in the party platform to appoint judges “who respect traditional family values and the sanctity of innocent human life.” After O’Connor, Reagan put the conservative, Catholic Antonin Scalia and Anthony Kennedy on the bench. O’Connor had already expressed her disaffection with Roe v. Wade, dissenting in the cases grouped together under Akron v. Akron Center for Reproductive Health in 1983.
Watching these developments, in 1986, the energetic Missouri Citizens for Life drafted the most ambitious legislation yet. The Missouri law included a preamble deeming life to begin at conception, an order that state laws must treat fetuses as having the rights of persons, a provision ordering doctors to test fetuses for viability, and a prohibition against use of public resources for abortions or even counseling abortions. The statute was so extreme, the Catholic Conference fretted that the Missouri attorney general would not be willing to defend the whole new law robustly, for fear of losing the case. The composition of the Court had changed enough to raise the possibility that it really would reverse Roe outright, and the Missouri activists wanted their AG to ask the Court to do so.
When the Missouri law came before the Court in Webster v. Reproductive Health Services, it did seem to leave it little room to escape the confrontation with Roe. As Bill Cox and his allies feared, the Missouri attorney general, perhaps suspecting that the Court might not be ready to overrule Roe directly, contended that the statute wasn’t as bad as it looked. The life-begins-at-conception language was just bloviating advice in a preamble, the state’s brief said (merely “precatory” and imposing no restrictions on anyone). The state accepted that it could not forbid publicly funded doctors to tell female patients they needed an abortion. Doctors can use their good judgment in administering the viability tests, the state said. But the Court was interested enough in outright reversal to grant leave for the United States to intervene as friend of the court to present the argument. George H. W. Bush’s solicitor general resubmitted the 1986 Reagan administration brief to the newly altered tribunal, asking the Court to overrule Roe, and had the unpleasant task of arguing for reversal to a tribunal that still included its author, Harry Blackmun.
As usual, O’Connor’s chambers included clerks of many diverse views. The responsibility for the initial memo fell to a clerk who came up from Ginsburg’s chambers, Daniel Mandil. He came down in favor of taking Missouri’s olive branch. Just let them minimize the severity of the restrictions, he counseled, and do the judicial-restraint thing of not confronting a constitutional decision until you must. If Mandil had his way, Webster would blow over and, although women would be burdened with a list of restrictions never before approved, Roe would remain the law as it was before the clouds gathered.
O’Connor’s other clerk Andrew McBride, fresh from the chambers of the recently rejected conservative Supreme Court candidate Judge Robert Bork of the D.C. Circuit, held down the right, while Jane Stromseth, up from clerking for the liberal district judge Louis Oberdorfer, occupied the opposite end of the political spectrum. Even as Mandil undertook his assigned duties, Stromseth and McBride both took the unusual step of preparing dueling memos. McBride argued for reversing Roe and Stromseth suggested that O’Connor find much of the statute to be an undue burden, a move that would leave most of Roe intact. When the clerks walked into O’Connor’s chambers as usual the Saturday before oral argument, no amount of chili was required for a hot discussion to ensue. The justice gave no hint of where she was going.
At oral argument the next week, however, she signaled her discomfort with allowing the states unlimited free rein over women’s reproduction. If the Court overruled Roe v. Wade, she asked Solicitor General Fried, would the state have “a right to require the women to have abortions,” say, if “we had a serious overpopulation problem?” When Fried denied this, she pressed him. If the woman had no liberty interest to protect her right to abortion, what would protect her against abortion? (This very unappealing scenario of the forced abortion was, of course, the case Ginsburg wanted to bring first to establish women’s reproductive rights, all those years ago when the air force discharged her client Susan Struck for refusing to have an abortion. But the canny Solicitor General Erwin Griswold had settled with Struck, making the case moot.)
The oral argument in the Missouri case graphically illustrates the appeal of the equality strategy. Without a robust commitment to women’s equality to control their destiny as the foundation for abortion rights, as Ginsburg advocated, abortion advocates were hampered in trying to rein in the states. With Justice Scalia in hot pursuit, the lawyer for the abortion providers was repeatedly forced back on the unconvincing argument that the laws should fall because reasonable people differed about when life began. Why isn’t when life begins exactly the kind of dispute we leave to the states, Scalia wanted to know. If the state can decide life begins at conception, the question then is what is to stop the state from forcing women to carry the life to term? Ginsburg’s answer would have been that women’s equality is what stops the state. Women need to control their reproduction if they are going to partic
ipate as equals in American life. In the universe of perfect logic, unless women count, as Ginsburg cannily perceived, Roe falls, and the states can do whatever they want.
But the Court rarely operates in the universe of perfect logic. As Blackmun held his breath, the Court stepped back from the brink. After a majority of five voted at conference to uphold the Missouri law, Rehnquist circulated a draft proposing to abandon the trimester scheme of Roe in favor of something like O’Connor’s original test of undue burden, but not to overrule Roe outright. It was hardly a white flag. He would then uphold everything Missouri did, including the section of Missouri law gagging doctors at public facilities, which the state had declined to appeal. If Missouri’s requirement of tests for viability violated the bright line of viability set out in Roe, then that aspect of Roe, his draft suggested, was “not constitutionally relevant.”
Rehnquist’s analysis was totally lawless. The Court was still going to preserve the shell of Roe, that is, forbid the states to unduly burden women’s access to abortions as an abstract matter, which is lawless enough. Then he went on to hold that nothing the state could dream up so far would actually fail the test. He was clearly testing to see what O’Connor would tolerate.
O’Connor immediately threatened to concur and even, if pushed, to dissent in part on the doctor gag order. The liberals, seeing an opening, offered to join O’Connor in dissent. Rehnquist backed down. He now knew that O’Connor was not going to overrule Roe outright. As long as she held the crucial swing vote, there was life in women’s abortion rights, however faint the beat.
On the subject of the exact structure of Roe, she proposed that the Court just accept Missouri’s concessions and act as if the Missouri law did not challenge the core of the opinion in Roe. “I see,” she wrote, “no necessity to go further than that in this case.” Rehnquist did not back down. As she had threatened to do, O’Connor duly filed a concurrence, depriving Rehnquist of his majority and formally preserving the trimester precedent of Roe v. Wade. She deliberately read the Missouri law to avoid a conflict and therefore, as she put it, to refuse “to accept the State’s invitation to reexamine the constitutional validity of Roe v. Wade… . When the constitutional invalidity of a State’s abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.”
Even Roe’s defenders, Blackmun and Stevens, said that pretending the Missouri law was compatible with Roe was “fraudulent” and “indecent.” But O’Connor was not ready to jump off the abortion cliff. In the inevitable next term’s abortion case, O’Connor actually made a five-justice majority with the liberals to strike down the law compelling a young woman to get both parents’ approval for an abortion. It was the first time the right-to-life movement came up with any restriction on the women O’Connor didn’t publicly vote for. O’Connor’s opinion hardly amounted to a wholesale embrace of women’s rights. With the other conservatives, she allowed the parental notification as long as it included an option to let the girl go to a judge for her abortion permission.
In 1990 Brennan left and was replaced by the Delphic David Souter, a man with no record on the subject of abortion at all. When Souter joined the conservatives to okay a doctor gag law in a 1991 case, the tension mounted. The next year, the conservative Clarence Thomas took Thurgood Marshall’s place. Abortion inevitably surfaced again in 1992, in a Pennsylvania case, Planned Parenthood v. Casey, and it looked like there were six votes to reverse Roe v. Wade outright. Souter’s one vote had been opposed to abortion rights, and the four from 1989—White, Rehnquist, Scalia, and Kennedy—plus the new conservative, Clarence Thomas, would act with or without Souter and certainly without their faithless ally Sandra Day O’Connor.
WWTFWOTSCD (WHAT WOULD THE FIRST WOMAN ON THE SUPREME COURT DO?)
Pennsylvania had imposed a lot of restrictions, such as strict parental notification and prescribing an elaborate presentation to the pregnant woman about the perils of abortion. But the real impact of the case was that two of the three judges on the Court of Appeals for the Third Circuit, which covers Pennsylvania, jumped the gun and ruled outright that Roe no longer commanded a majority of the Court. Instead, they would take their orders from the crucial swing vote, Sandra Day O’Connor. Having explicitly refused to follow Roe v. Wade, the circuit court then sustained almost the entire Pennsylvania scheme as an application of O’Connor’s undue-burden standard. (Judge Samuel Alito of the Third Circuit even voted to uphold a requirement that pregnant women seeking abortion must notify their spouses, but he could not persuade either of the other two judges to join him on that point.) Still, the pro-choice activists were so scared of the Court that they actually debated not appealing from the Third Circuit. Pennsylvanians would just live with the draconian terms of the state’s anti-abortion law.
But it was 1992. The lawyer in charge of the case, the ACLU’s Kathryn Kolbert arguing for Planned Parenthood, made a political decision to provoke the Supreme Court into just overruling Roe. She would argue that there was no way to reconcile the Pennsylvania law with Roe and so the Court either had to strike down the law or overrule Roe at last. She wasn’t happy to lose the foundation of women’s abortion rights, but she was hoping women’s furious reaction to the repeal of Roe v. Wade in the upcoming election would push George H. W. Bush right out of the White House. The next appointments would be made by a Democrat. In her mind anything would be better than having the lower courts start issuing a bunch of rogue opinions like the Pennsylvania court had just done. The ACLU petitioned for Supreme Court review, suggesting that the issue was whether the Supreme Court had overruled Roe v. Wade. For its part, Pennsylvania stepped right up and appealed the one issue it lost, asking the Court to approve of making women tell their husbands about their planned abortions. So no one was arguing for any more evasion.
For her political strategy to work, Kolbert had to get the case on the docket immediately, however. Any delay would put the issuance of the decision beyond the 1992 election, and it would be four long years before the next chance to test abortion rights at the ballot box. She filed her petition for review in record time three weeks later, on November 7, 1991. But she was no match for the chief justice, who controlled the calendar. For some gut-wrenching weeks, Rehnquist simply kept delaying consideration of Casey, a move called “relisting,” of whether to review the abortion case. Finally, some combination of Justices Stevens and Blackmun got Rehnquist’s attention by threatening to file an unprecedented public dissent from the decision to relist, and Rehnquist abandoned the tactic.
The Court voted to take the case, with plenty of time for a decision before the election. When the time came, only O’Connor and Rehnquist voted not to take it. Had they prevailed, the denial of review would, of course, have thwarted the abortion activists’ plan to make abortion an issue in the election. Then Justice Souter, who had voted tentatively to take it, asked for more time! Alarms spread in the liberal chambers of justices such as Blackmun. After a scouting mission to Souter’s chambers, Blackmun’s clerk Stephanie Dangel assured him that Souter would not delay the case until after the presidential contest. “Unlike the Chief and SOC [Sandra O’Connor], Souter was not concerned about the election,” Souter’s clerk told Dangel.
As Blackmun’s clerk reported, O’Connor was concerned about the election. Not until Senator Barry Goldwater’s papers became available to the public many years after the clerks exchanged views on O’Connor’s politics did her ongoing concern with the senior Bush’s electoral fate emerge fully. Four years earlier, she had expressed to her Arizona colleague how critical Bush’s election was “for the court and the nation.” Now the abortion case threatened his retention in 1992. But other than voting against taking it, which she did, there was little she could do to stop it.
Kathryn Kolbert was particularly determined to use the appeal to dare the FWOTSC to overrule Roe. At oral argument, for seven long minutes, she extolled Roe and attacked Justice O’Conno
r’s preservationist strategy from Webster. Kolbert was not grateful to O’Connor for barely preserving Roe. She thought Roe should be reaffirmed or rejected. Finally, beyond provocation, Justice O’Connor broke in, accusing Kolbert of not addressing the issues the Court had asked to review. Was the litigator ever going to address what the Court was interested in? Kolbert said she was, but indeed, she was not.
The leaks from the conference are laconic, but Justice Rehnquist apparently felt he had enough votes to affirm all of the Pennsylvania regulations, including the spousal notification, and so he again assigned the opinion to himself. It looked like Roe was done. Justice Souter was deeply troubled by the bald overruling of established precedent as a result of a simple change in the composition of the Court. But given the size of Rehnquist’s majority, Justice Souter must have seemed unimportant at that moment. Bad mistake. Suspecting, from her votes in Webster and the parental notification case, that Justice O’Connor was not on board with Rehnquist, Souter decided to see what she thought could be done. There was only one place for the two of them to go: to Justice Anthony Kennedy.
There is no evidence that it was Justice O’Connor who engineered the survival of formal abortion rights. Kennedy, the critical third vote, was a devout Catholic, he had been tight with the conservative Catholic Antonin Scalia since his appointment, and he was not particularly close to O’Connor. Indeed, O’Connor was not palling around with anyone that term. People on the scene believe it was Souter who approached Kennedy. Scalia’s ideological rigidity and his over-the-top rhetoric had come to feel unseemly to the ethereal Anthony Kennedy, and, when Justice Souter approached him, he quickly abandoned the conservative ship. It did not hurt that Souter and Kennedy had worked together earlier that term to produce a centrist opinion in an important environmental case, again leaving the hard-core four conservatives without a majority, in that case, to gut the Endangered Species Act. They had a pathway to cooperation, and a common sense of themselves as occupying the center. They decided to cowrite an opinion, not a common practice in 1992. One month later, Kennedy wrote to Blackmun. “I want to tell you about some developments in Planned Parenthood v. Casey, and I think part of what I say should come as welcome news.”
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