In many U.S. states, abortion was once a crime. It may be again, if Ruth Bader Ginsburg, who just finished her third fight with cancer, leaves the Supreme Court during the Trump Presidency. If, as is widely speculated, Trump nominates Judge Amy Coney Barrett, of the Seventh Circuit Court of Appeals, to take Ginsburg’s place, women would be at serious risk of losing their constitutionally protected right to abortion. Judge Barrett would become the fifth woman appointed to the Supreme Court in its two-hundred-and-thirty-year history. The story of how the first female Justice, Sandra Day O’Connor, dealt with abortion law reveals much about why this issue is so difficult, and why we may be headed back to the age of proverbial back alleys.
In 1973, the U.S. Supreme Court ruled, 7–2, in the landmark case of Roe v. Wade, that women have a constitutional right to abortion. The decision, written by Justice Harry Blackmun, gave women an unfettered right to abortion in the first trimester of pregnancy, limited thereafter by the state’s interest in the mother’s health and in protecting a “viable” fetus that could live outside the womb. In an epic miscalculation of the mood of American politics, the majority of Justices seemed to believe that they were merely putting the court’s imprimatur on a social liberalization whose time had come. Almost immediately, a backlash erupted from the new Christian right. The Reverend Jerry Falwell claimed that he had an epiphany when he read news of the Roe v. Wade decision, on January 23, 1973. He instantly knew in his heart, he said, that evangelicals needed to organize into a vast pro-life movement to undo the Supreme Court’s decision. By 1980, Falwell’s organization, the Moral Majority, would try to make abortion a litmus test for millions of voters all over the country, particularly those voting in Republican primaries. Various G.O.P.-controlled state legislatures began passing laws seeking to outright overturn Roe, or to test how much they could limit women’s choice.
When, in 1981, Ronald Reagan nominated Sandra Day O’Connor to the Supreme Court, her views on abortion became a source of intense speculation. At her confirmation hearings, O’Connor, an Arizona appellate-court judge and a former Republican state senator, was folksy and disarming, if not entirely forthcoming, about her own views. She said she was opposed to abortion as a personal matter, as “birth control or otherwise,” but she added, “I’m over the hill. I am not going to be pregnant anymore, so it is perhaps easy for me.” (She was fifty-one and had undergone a hysterectomy three months earlier.) She was circumspect with everyone, including her family. It is almost certain that she never favored outlawing abortion altogether, but it is also likely that she struggled in her own mind to settle on the proper legal limits. In the coming years, when the Roe decision came under fire from conservative activists and the Supreme Court’s balance shifted toward the Republican Party, her struggle became the whole country’s.
The pro-life movement showed up at the Supreme Court on January 22, 1983, on the tenth anniversary of Roe v. Wade. Thousands of protesters thronged outside, in part because the Justices had agreed to take another abortion case, City of Akron v. Akron Center for Reproductive Health, Inc. In Ohio, the City of Akron implemented rules requiring women to sign “consent forms,” listen to a lecture from the doctor that a fetus is “human life from the moment of conception,” and return to the clinic after a twenty-four-hour waiting period before the abortion could be performed.
The Court voted on the Akron case in early December, and Justice O’Connor laid out her views in her personal notes. In her steady-handed script, she wrote, “There is simply no justification in Constitutional theory for having a different standard or test for the different trimesters. Seems it puts us in the business of being a science review board. The interest of the state in protecting the unborn is essentially the same at all stages of pregnancy. I would permit state regulations at every stage which do not unduly burden the right of the woman to terminate her pregnancy.”
O’Connor was moved less by constitutional theory than by the purely practical problems of judges trying to decide when a fetus was “viable,” or able to live outside the womb. Medical progress meant that “viability” would become earlier and earlier, which meant, as she later put it, that Blackmun’s trimester framework in Roe was “on a collision course with itself.” O’Connor was willing to let the states restrict abortions as long as they did not put an “undue burden” on the woman’s right to choose. The phrase “undue burden” had appeared in the Reagan Administration’s brief. It was a purposefully vague term, leaving plenty of room for the states and the courts to maneuver and litigate in the years to come. But, significantly, the Reagan Administration had not tried to overturn Roe completely. In June,1983, six Justices voted to knock down Akron’s restrictions, while three—O’Connor, William Rehnquist, and Byron White—voted to uphold them. Roe survived intact.
The crowds kept getting larger. On January 23, 1989, the sixteenth anniversary of Roe v. Wade, more than sixty thousand demonstrators assembled on the Mall to protest the famous decision. Over loudspeakers, the newly inaugurated President George H. W. Bush told them—and sent a not-so-subtle signal to the Supreme Court—that the time had come to overrule Roe. The political pressure of the anti-abortion movement had continued to mount: President Bush, once a Planned Parenthood–supporting moderate, had felt compelled to champion the right-to-life cause.
Two weeks earlier, the Court had agreed to rule in a case called Webster v. Reproductive Health Services, on a Missouri law sharply limiting abortion. Missouri legislators called it the “kitchen sink” law, because they had put in every restriction to abortion they could think of, from a preamble declaring that “life begins at conception” to prohibiting public hospitals from performing abortions that were not necessary to save the life of the mother. In O’Connor’s chambers, the mail stacked up—letters with photos of dead fetuses in one pile, letters with photos of coat hangers (symbol of back-alley abortions in the pre-Roe era) in another. “The Battle over Abortion,” was the cover line of Newsweek the week that the Webster case was argued before the Supreme Court, with a special focus on “Justice O’Connor’s Key Role.”
O’Connor’s understanding had deepened in the course of the past few years, as her eldest son, Scott, and his wife, Joanie, had tried to conceive. Finally, through a fertilization procedure, Joanie had become pregnant. On Mother’s Day, 1989, just over two weeks after the oral arguments in Webster, O’Connor joined her husband, son, and daughter-in-law to view an ultrasound video of her first grandchild. “We watched a terrific video of ‘Baby O’Connor’ at 4 ½ months since conception and about six inches long,” O’Connor’s husband, John, wrote in his diary that night. “I couldn’t help reflect that SOC was watching pictures of a fetus of her grandchild at a time when she was concurrently being viewed as the swing vote on the abortion issue.”
In the end, O’Connor went with an approach entirely consistent with her jurisprudence: to say as little as possible and to let the argument evolve through the delicate balance between legislatures elected by the people and judges sworn to protect the Constitution. She concluded that, properly read, the Missouri regulations did not impose “an undue burden” on a pregnant woman, her test from the Akron case, and that there was no need to revisit the constitutional validity of Roe v. Wade. In other words, the battle would return to the states, which could keep trying to restrict abortion—and keep trying to persuade the Court to throw out the embattled precedent.
In the winter of 1992, a hundred thousand people showed up at the annual right-to-life protest march on the Roe v. Wade anniversary. With the replacement of the liberal Thurgood Marshall by the conservative Clarence Thomas, it appeared likely that the Court would have five votes to overturn Roe. The state of Pennsylvania had enacted the most restrictive law yet: women wanting an abortion had to wait twenty-four hours after contacting a clinic to get one; they had to undergo a mandatory lecture on fetal development; and, if a woman was married, she had to notify her husband.
Planned Parenthood of Southeastern Pennsylvania v. Casey was argued on April 22, 1992. Justice O’Connor awoke at 4:15 A.M. in “real pain,” John recorded. “She began shaking like a leaf and continued to shake for 5 to 10 minutes.” She was up by six and on her way to the Supreme Court. The immediate cause of her pain was a back injury, but she was also feeling the accumulated stress of too many years in the eye of the abortion storm. At the time of the Webster case, two leading feminist lawyers, Susan Estrich and Kathleen Sullivan, had authored a widely read, passionate defense of Roe v. Wade entitled “Abortion Politics: Writing for an Audience of One.” The one, as the legal and political world well understood, was Justice O’Connor.
The lawyer arguing to strike down the Pennsylvania abortion restrictions, Kathryn Kolbert, representing Planned Parenthood, adopted a radical strategy. She wanted to force the court to either affirm Roe outright—or reverse it. With polls showing that most people supported a woman’s right to choose, Kolbert was playing politics. Assuming that the Court reversed Roe, the pro-choice movement planned to make abortion rights a central issue of the 1992 Presidential campaign.
Justice O’Connor was irked by Kolbert’s all-or-nothing argument. Asking the first question, her flat voice radiating thinly disguised annoyance, O’Connor stated, “Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe against Wade in all its aspects. Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?”
At the conference, Chief Justice Rehnquist counted five votes to reverse Roe—his own, along with the votes of White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas—and assigned himself the Court’s opinion. Justice Blackmun, Roe’s author, was near despair. Then, on May 29th, Blackmun received a letter from Justice Kennedy. “Dear Harry,” it began, “I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.”
The “welcome news” was that three Justices—Kennedy, David Souter, and O’Connor—had been meeting secretly to save a woman’s right to abortion. The Troika, as they became known, was cobbling together a joint opinion that, when added to the pro-abortion votes of Blackmun and John Stevens, would effectively negate Rehnquist’s effort to gut Roe v. Wade.
With Souter handling so-called stare decisis—the importance of following precedent—O’Connor undertook the nuts-and-bolts part of the opinion. She did away with Blackmun’s creaky trimester system and firmly implanted her “undue burden” test in abortion law, signalling to the states that any restrictions on abortion would still have to pass judicial review. She voted to uphold most of the Pennsylvania law but, significantly, struck down the requirement that wives formally notify their husbands before obtaining an abortion. As a state judge and assistant attorney general in Arizona, O’Connor had seen many abusive husbands. More broadly, her concern was with the health and safety—and autonomy—of women.
O’Connor’s efforts to bring the real world into her jurisprudence raised an uncomfortable issue about judges wrestling with great social-policy questions. Supreme Court Justices may be experts at the law, but they are typically not experts at science, social or natural, and their attempts to render as “legal” the challenging moral and scientific issues that confront society can lead to unanticipated consequences. When Justices interpret the Constitution, inevitably they make moral judgments. Sometimes they reflect society’s moral norms, sometimes they follow, and, very occasionally, they push ahead. When Harry Blackmun issued his Roe v. Wade opinion, in 1973, state legislatures were beginning to liberalize abortion law. If the Court had stayed out of the political thicket, would abortion have been widely legalized? Would Congress have stepped in to insure abortion rights? It is impossible to know, since by inserting themselves in the abortion fight, the Justices may have helped guarantee a backlash.
Justice O’Connor had an intuitive feel for the public mood. She did not need to read polls to know that, although some people are either for or against abortion as an absolute matter, more people have a less certain or determined view. She knew that there were many women like her, unwilling to have an abortion but also reluctant to tell other women to make the same choice. As a Justice, she helped bring the Roe decision more closely in line with the views of most Americans and with the experiences and needs of women. One might argue that O’Connor’s “undue burden” standard allowed for the erosion of abortion rights in conservative states, but it also secured a fragile national consensus. There may soon be five votes on the Supreme Court to overturn Roe v. Wade, but the Justices will have to think twice about reversing the precedent of now nearly a half century. The Court’s authority is built partly on predictability and continuity, which O’Connor, with her pragmatism and finesse, helped to preserve, along with a woman’s right to an abortion.
Evan Thomas is the author of “First,” a new biography of Sandra Day O’Connor, from which this piece is adapted.
