Before the end of October, Blackmun's new draft in the abortion case was circulated to the various chambers.
Brennan read it carefully. He waded through the positions of the medical professional organizations, the expanded historical section, the long-winded digest of the medical state of the art. Despite all this, Blackmun's bottom line was acceptable. The states would be prohibited from regulating abortions until "viability." That meant state regulation only during the third trimester. But Brennan spotted a weakness in the argument. Connecting the state's interest in the fetus to the point of viability was risky. Blackmun himself had noted that medical advances made fetuses viable increasingly early. Scientists might one day be capable of sustaining a two-week-old fetus outside
the womb.
*Abele
v.
Markle.
Advances in medicine could undermine the thrust of the opinion.
Brennan had other concerns. Blackmun had focused on the rights of the doctor and the rights of the state. The most important party, the woman, had been largely neglected. Her rights were the ones that needed to be upheld.
Brennan found yet another analytical fault in the draft Blackmun had discussed at length the state's dual interests in protecting the pregnant woman's health and the potential life of the fetus. Both interests were closely intertwined in Blackmun's draft. Brennan thought they were quite distinct He handed Blackmun's draft to one of his clerks. "It doesn't do it," he said.
Brennan's clerks worked up a long memorandum. The delicate question, however, was how to communicate Brennan's thoughts to Blackmun. If Brennan phoned and said, "Harry, here are my ideas," Blackmun might be intimidated or fumble for months and still not change the draft adequately. On the other hand, if Brennan sent a
x
printed opinion to the conference, Blackmun might think he was trying to steal the majority. The last thing Brennan wanted was to author the Court's abortion decision. He could imagine too vividly what the Catholic bishops would say.
In mid-November, Brennan took his clerks' memo and recast it as a series of casual thoughts and suggestions. It was important that it not appear to be an alternative draft. Brennan addressed a cover memo to Blackmun saying he fully agreed with his draft but wanted to pass along some ideas. Brennan's thoughts ran forty-eight pages. Copies were sent to all the Justices.
Blackmun liked some of Brennan's suggestions. He quickly sent a memo to the Justices saying that he was incorporating them. Before he revised his draft, however, he decided that there was another set of views to be taken into account
The Chief had made it clear to Blackmun that he would "never" join the draft as it stood, permitting unrestricted abortions up to viability, or the end of the secon
d trimester. Blackmun wanted t
he Chiefs vote, and he thought he saw a way to get it while still taking into account Brennan's suggestions. Instead of the one demarcation line, viability, Blackmun would create two. This would also be more medically sophisticated; it would show that the two state interests—protecting the pregnant woman's health and protecting potential life of the fetus—arose at different times. He settled on a formula.
1.
First
12
weeks (first trimester); no state interest
at all; abortions unrestricted and left up to the
medical judgment of the doctor.
2.
1
2
to
24
weeks (second trimester); state interest
arises and abortions can be regulated only to protect the woman's health.
This formula had the effect of som
e
what limiting abortions in the second trimester. But eliminating viability as the dividing point, Brennan's worry, guaranteed that medical science could not keep reducing the time period during which abortions would be legally available.
Marshall was not happy with Blackmun's proposal. It was too rigid. Many women, particularly the poor and undereducated, would probably not get in touch with a doctor until some time after the first
12
weeks. A woman in a rural town might not have access to a doctor until later in pregnancy. And according to. the Blackmun proposal, the states could effectively ban abortions in the
12-
to-24-week period under the guise of protecting the woman's health. Marhsall preferred Blackmun's original linkage to viability. If viability were the cut-off point, it would better protect the rural poor. Clearly, viability meant one thing in Boston, where there were fancy doctors and hospitals. There, a fetus might be sustained after only a few months. But in rural areas with no hospitals and few, if any, doctors, viability was probably close to full-term, or late in the third trimester.
Marshall presented all this to Blackmun in a memo.
Blackmun respected Marshall's point of view. Marshall clearly knew a lot about many real world problems that Blackmun would never see. He incorporated all of Marshall's suggestions. His new draft specified:
I. For the stage up to "approximately" the end of the first trimester, abortions would be left to the medical judgment of the doctor.
The clerks in most chambers were surprised to see the" Justices, particularly Blackmun, so openly brokering their decision like a group of legislators. There was a certain reasonableness to the draft, some of them thought, but it derived more from medical and social policy than from constitutional law. There was something embarrassing and dishonest about this whole process. It left the Court claiming that the Constitution drew certain lines at trimesters and viability. The Court was going to make a medical policy and force it on the states. As a practical matter, it was not a bad solution. As a constitutional matter, it was absurd. The draft was referred to by some clerks as "Harry's abortion."
Stewart had one more change that he insisted on before he would join the opinion. It was imperative that they say more clearly that a fetus was not—as far as the Fourteenth Amendment was concerned—a person. If the fetus were a person, it had rights protected by the Constitution, including "life, liberty and property." Then the Court would be saying that a woman's rights outweighed those of the fetus. Weighing two sets of rights would be dangerous. The Court would be far better off with only one set of rights to protect. Stewart was certain that in legal terms a fetus was not a person. No previous case had held so. States conceded that, where the mother's life was at stake, a fetus had no rights. When the Fourteenth Amendment was passed in
1868,
abortions were common enough to suggest that the state legislatures that had ratified the Amendment did not consider fetuses to have rights.
Blackmun did not disagree, but he felt the point was implicit in the opinion. Why expand it and stir up trouble?
Stewart was insistent, and Blackmun finally agreed to say clearly that a fetus was not a person.
After he had joined Blackmun's opinion, Stewart still wanted to add his own concurrence. Unlike Douglas, he was not inclined to write separate opinions spelling out small, technical disagreements with the majority. Stewart often joined inadequate opinions—"junk," he once called them—believing that this was a vital part of the compromising process. It also left him more time to write his own majority opinions.
But the Blackmun opinion lacked an explicit constitutional foundation for the abortion ruling. In a middle section providing his legal reasoning, Blackmun had brought the broadest arguments against restrictive abortion laws. He had written a sweeping general conclusion that the basis for lifting the restrictions could be found in the Ninth and Fourteenth, even in the First Amendment, and that it was implied in a series of privacy cases, ranging from the
1965
Connecticut contraceptive case to the previous term's contraceptive case so carefully tailored by Brennan
(Eisen
stadt
v.
Baird).
"Zones of privacy," Blackmun had written, do exist "under the Constitution." Stewart could not fully accept that. It was too broad. It was precisely the cause of his dissent in the
1965
Connecticut contraceptive case and of his hesitancy the previous year in
Eisenstadt.
He wanted to identify the part of the Constitution that conferred the freedom to have abortions during the early months of pregnancy. Stewart believed that a woman's right to an abortion in the early months was a "liberty" protected under the due process clause of the Fourteenth Amendment. But that approach carried with it historical baggage that Stewart would rather avoid.
In the
1930s
the Court had used the clause to strike down key New Deal legislation. Since "liberty" could be construed to mean anything that five Justices agreed should be protected, critics charged that the Court had become a superlegislature, substituting its judgment for that of elected legislators. This approach, called "substantive due process" (to differentiate it from the more common procedural rights covered by due process), had been gradually discredited.
Since Stewart felt that "substantive due process" was the real basis for the Blackmun opinion, he believed that Blackmun was hesitant to admit it in the opinion. Stewart circulated his own concurrence, joining Blackmun's opinion, but adding his observations on the real roots of the opinion.
Reading Stewart's concurrence, Douglas found it laughable that Stewart, of all people, was concerned with constitutional purity. Douglas believed that Stewart's real motive in writing a concurrence was to put some distance between himself and Blackmun's opinion, which Stewart obviously thought was poorly reasoned and written.
Douglas shot back a memo arguing that Stewart had the history all wrong. This was not "substantive due process," Douglas said. He had been one of the earliest and most vociferous critics of that doctrine. The basis for the decision was clear. The Blackmun opinion was based on the right to privacy, Douglas countered.
Blackmun wanted no part-of the Stewart-Douglas debate. He was tired of compromising and dealing with everyone's gripes. This latest "sniping" was ridiculous. The important thing was that he already had six votes.
Given his gloomy expectations at the outset of the abortion debate, Douglas felt the Court had come a long way. The right to privacy was being given constitutional foundation in a major opinion. He dropped his debate with Stewart
.
It was a great victory, and Douglas wanted to add a concurring opinion underscoring its significance.
He decided to revise a lyrical concurrence that he had drafted the previous term about what he called the
cu
stomary, traditional, and time-honored rights, amenities, privileges and immunities that come within the sweep of "the Blessings of Liberty."
First is the autonomous control over the development and expression of one's intellect, interests, tastes and personality.
Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.
A clerk urged him to go beyond his discussion of a right to privacy and conclusively nail down a right to abortion. Douglas responded, "I'm only writing this for me." White shortened his dissent from the previous term. The states, not the courts, should decide the question of limits on abortion. Blackmun's trimester-and-viability scheme was pure legislation. "As an exercise of raw judicial power, the Court perhaps has authority to do what it does today," White wrote. But he expressed doubts about a constitutional sanction that would allow a woman to get rid of an unwanted child on a "whim" or out of "caprice."
"The Court," White wrote, "apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries."
Rehnquist's dissent had little to do with abortion. As always, Rehnquist pushed his views on restricting federal court powers and the women's rights to bring these cases into court. First, he attacked the most basic element of the cases. No one had standing to bring these cases into court, he said. Assuming the women were pregnant when the suit was brought, they would be at least in their third trimester by the time the lower court decided the case. Since Blackmun's opinion held that states could deny abortions during the third trimester, there was no claim for the women to bring.