Roe v. Wade reached the Supreme Court on appeal in 1970. Read more: https://www.amazon.com/gp/search?ie=UTF8&tag=tra0c7-20&linkCode=ur2&linkId=72cf442f293aa9c43f5d1803934cd95a&camp=1789&creative=9325&index=books&keywords=roe%20v%20wade The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had decided Younger v. Harris (because they felt the appeals raised difficult questions on judicial jurisdiction) and United States v. Vuitch (in which they considered the constitutionality of a District of Columbia statute that criminalized abortion except where the mother’s life or health was endangered). In Vuitch, the Court narrowly upheld the statute, though in doing so, it treated abortion as a medical procedure and stated that physicians must be given room to determine what constitutes a danger to (physical or mental) health. The day after they announced their decision in Vuitch, they voted to hear both Roe and Doe.
Arguments were scheduled by the full Court for December 13, 1971. Before the Court could hear the oral arguments, Justices Hugo Black and John Marshall Harlan II retired. Chief Justice Warren Burger asked Justice Potter Stewart and Justice Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. According to Blackmun, Stewart felt that the cases were a straightforward application of Younger v. Harris, and they recommended that the Court move forward as scheduled.
In his opening argument in defense of the abortion restrictions, attorney Jay Floyd made what was later described as the “worst joke in legal history”. Appearing against two female lawyers, Floyd began, “Mr. Chief Justice and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” His remark was met with cold silence; one observer thought that Chief Justice Burger “was going to come right off the bench at him. He glared him down.”
After a first round of arguments, all seven justices tentatively agreed that the Texas law should be struck down, but on varying grounds. Burger assigned the role of writing the Court’s opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law’s vagueness. (At this point, Black and Harlan had been replaced by Justices William Rehnquist and Lewis F. Powell Jr., but they arrived too late to hear the first round of arguments.) But Blackmun felt that his opinion did not adequately reflect his liberal colleagues’ views. In May 1972, he proposed that the case be reargued. Justice William O. Douglas threatened to write a dissent from the reargument order (he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the statute), but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion.The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.
Blackmun continued to work on his opinions in both cases over the summer recess, even though there was no guarantee that he would be assigned to write them again. Over the recess, he spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. After the Court heard the second round of arguments, Powell said he would agree with Blackmun’s conclusion but pushed for Roe to be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. Justice Byron White was unwilling to sign on to Blackmun’s opinion, and Rehnquist had already decided to dissent.
Prior to the decision, the justices discussed the trimester framework at great length. Justice Powell had suggested that the point where the state could intervene be placed at viability, which Justice Thurgood Marshall supported as well. In an internal memo to the other justices before the majority decision was published, Justice Blackmun wrote: “You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” Roe supporters are quick to point out, however, that the memo only reflects Blackmun’s uncertainty about the timing of the trimester framework, not the framework or the holding itself. Contrary to Blackmun, Justice Douglas preferred the first-trimester line. Justice Stewart said the lines were “legislative” and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun’s decision.
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