Roe Against Wade
Speaker 1: Richard Nixon called a lot of people. Bastards, American generals, the citizens of North Vietnam. The journalist Dan Rather. And as you’ll hear in this clip from his secret White House tapes, he also used the epithet against another branch of government.
Speaker 2: You know those clowns we got on there? I’ll tell you, I got my outlet, the bastards. Well, I hope you do, too. I mean, politically do it because we’ve got to change that court.
Speaker 1: The Supreme Court has never been more liberal than it was in the 1950s and sixties, led by Chief Justice Earl Warren. They had banned segregation in public schools, outlawed school prayer, and ruled that every criminal defendant had the right to a lawyer even if they couldn’t afford one. Conservatives accused the Warren Court of legislating from the bench.
Speaker 3: And it’s one of the things that Nixon campaigns on in 1968.
Speaker 1: That’s Tim Robbins. He’s a lawyer and the author of the book January 1973.
Speaker 3: He is a big opponent of Earl Warren, and he believes that the court is making up rights that aren’t in the Constitution. And he wants to appoint only justices who are what he called strict constructionist.
Speaker 1: Nixon got his chance to change the court right away. Two seats opened up in his first year in office. His first nominee was from Minnesota. Warren Burger sailed through the Senate and became the new chief justice, replacing Nixon’s enemy, Earl Warren, for the second seat. Nixon was determined to appoint a Southerner. It didn’t go well. A judge from South Carolina got rejected because of his track record on civil rights. The president tried again a few months later, this time with a judge from Georgia. But before the hearings even started, the press uncovered that he had endorsed white supremacy.
Speaker 2: The Senate today, President Nixon, another embarrassing defeat, rejecting his second Supreme Court nominee for a seat which already has been vacant 11 months, one of the longest periods in Supreme Court history.
Speaker 1: A president hadn’t botched a Supreme Court nomination this spectacularly since the 1800s. Nixon was determined not to fail again. This time, he got an assist from his new chief justice.
Speaker 3: Warren Burger, called him and said, I think you ought to think about my friend Harry Blackman.
Speaker 1: Harry Blackman was a 61 year old federal appeals court judge. He was also Burger’s childhood friend from Minnesota. The two had remained close. Blackman had even been the best man at Burger’s wedding.
Speaker 3: So Burger suggests Blackman in the next day. The very next day. There is Harry Blackman meeting with Richard Nixon.
Speaker 1: Blackman had been delighted when his friend was named Chief Justice. He’d even sent Burger some suggestions on how to change things up at the court. But he never imagined any of this for himself. Blackman was a former math major. He was known for being deliberate in his thinking and his speech.
Speaker 2: We’ve all known the loud.
Speaker 4: Talker, the one who preempts the class discussion. The one who seems to pull ahead now early, but who recedes into silence or oblivion when the time for real decision arises.
Speaker 1: On his flight to meet with Nixon. He made a list of pros and cons for accepting the nomination. He could only come up with cons. My lifelong friendship with the Chief Justice. My taking too long on opinions. My lack of acquaintanceship with Washington power. But Blackman didn’t have much time to second guess himself. In D.C., he got vetted right away. One official asked if his three daughters, all in their twenties, were hippies. He went to the Oval Office almost immediately to meet with Nixon and his attorney general, John Mitchell. The three men talked about Blackmon’s finances, which Nixon mocked for being meager.
Speaker 3: He had come from extreme poverty.
Speaker 1: Harold Koh was one of Blackmon’s law clerks.
Speaker 3: So he was the kind of person who knew exactly how much change was in his pocket.
Speaker 1: Nixon also warned Blackmon that people in Washington would try to influence him and that he would need to resist that. And then very quickly, the meeting was over.
Speaker 3: Nixon spent a half an hour with him and decides, okay, this is going to be the guy.
Speaker 1: Blackmon had the nomination. And in that moment, he decided he couldn’t turn it down.
Speaker 3: They told him, You can go back to Minnesota, but don’t tell anybody. And during it all, just as Blackmon, who had come from Minnesota that morning and hadn’t eaten breakfast, Cheney secretly hungry. Nixon never even offered him a cup of coffee. And he thought, well, give me the Oval Office. I get you, get a cup of coffee. And he instead rushes back to the airport and just barely gets on the plane.
Speaker 1: As soon as Blackmon got announced as the nominee, reporters tried to pin him down on his judicial philosophy.
Speaker 2: I think if you were to drive me to the wall and force an answer, I would say that I maybe regard myself as somewhat in the center, but I tried to call every decision exactly as I see it.
Speaker 1: The centrist from Minnesota didn’t offend anyone, and he didn’t seem to have any skeletons in his closet either. Richard Nixon finally had a winner.
Speaker 2: The Senate has unanimously confirmed federal Judge Harriet Blackman’s nomination to the Supreme Court.
Speaker 1: The vote in the Senate was 94 to 0.
Speaker 2: Still, the judge appeared almost unwilling to believe what had happened. Jokingly, he said, the Senate could still change its mind. Finally, he admitted in an almost inaudible voice that he was simply overwhelmed.
Speaker 1: Blackman never forgot that he was Nixon’s third choice for the rest of his career. He referred to himself as old number three.
Speaker 3: He was extremely modest, ludicrously modest. He always flew coach and he would be sitting next to Joe Passenger and they’d say to him, What do you do? And he’d say, Oh, I’m a lawyer in Washington.
Speaker 1: Blackman’s first year on the job wasn’t easy as the new ninth justice, he was expected to be the tiebreaker in a lot of deadlocked cases. He hated the pressure. He wrote to his friend, the chief justice. It is somewhat shattering to start this way. Blackman faced one of his first big tests in June 1971.
Speaker 2: Sooner or later, we can expect this issue to come before the Supreme Court. And the question there will be the role of the press in a democracy.
Speaker 1: The court had to rule quickly on whether the New York Times could publish the Pentagon Papers, the Defense Department’s secret report on the Vietnam War. The justices decided in favor of the times and against the White House. That Nixon tape that you heard at the top of this episode where he calls the justices bastards. That was the president’s reaction to losing the Pentagon Papers case.
Speaker 2: I want to tell you that I was so damn mad when that Supreme Court had to come to if they didn’t like their decision. But suddenly the unbelievable, wasn’t it?
Speaker 1: Not everyone on the court had disappointed Richard Nixon that day. Three of the nine justices took the president’s side. Two of them were his own nominees, Warren Burger and Harry Blackman. That vote on the Pentagon Papers started to establish Bachmann’s reputation. He was seen as a Nixon lackey and a carbon copy of Chief Justice Burger.
Speaker 4: They were called the Minnesota Twins. And I think that the way to come to the court, the justice resented a little bit.
Speaker 1: That’s another of Blackmon’s clerks, George Frampton.
Speaker 4: He didn’t feel he was there to help his old friend. He felt he was there, you know, as his own man.
Speaker 1: Blackman hated being seen as a political operator. He wanted a chance to establish himself as an independent thinker, separate from the chief justice and the president.
Speaker 2: Justice Blackman is considered a strict constructionist. He told the Judiciary Committee that the Constitution must be interpreted in the light of current problems. That said, Blackmun is what we have courts for.
Speaker 1: A few months after the Pentagon Papers decision, two lawsuits about abortion came before the court. Dobie Bolton was out of Georgia. Roe v Wade was from Texas. It would be up to Harry Blackman to decide their fate. This is slow burn. I’m Susan MATTHEWS. Justice, Blackman’s research and opinions would determine the future of reproductive rights in America. They’d also set the terms of the abortion debate for the next half century. What did Harry Blackman’s opinion say and what did it leave out? How did he convince so many other justices to sign on? And what kind of mark would the case leave on its author and the rest of the country?
Speaker 4: How do we tackle the cause and avoid coming up with something worse? What would each of us.
Speaker 2: Do if we had the primary responsibility to unravel the.
Speaker 5: Problem?
Speaker 1: This is episode four Roe Against Wade.
Speaker 1: Sarah Weddington grew up in West Texas in the 1950s. The daughter of a methodist minister, she loved basketball. But back then, women were forced to play a restricted version of the game. They weren’t allowed to run the full length of the court. Here’s Weddington in 2012.
Speaker 5: And I was one of those women saying, why can’t we just keep running? And my coach would say, Oh, no. All that jiggling and bounding and rebounding, why you might hurt your innards, and that is your meal ticket.
Speaker 1: Weddington wanted to be more than just a future wife and mother. In 1965, she enrolled in law school at the University of Texas, one of just five women in her class. She got pregnant two years later when she was still in school. Weddington went to Mexico to get an abortion. It cost her all the money she had at the time.
Speaker 5: I can still remember thinking, Oh, I hope I don’t die. And even more than that, I hope no one ever finds out about this.
Speaker 1: Weddington made it through and finished up her law degree. She also fell in with an activist group. They wanted to overturn Texas’s abortion ban, and they asked for her help filing a lawsuit. Weddington would bring that suit in March of 1970. She represented an anonymous plaintiff, Jane Roe, who had been denied an abortion. While the case made its way through the courts. Roe carried her pregnancy to term and placed the child for adoption. But Weddington still argued that the state of Texas had violated Jane Roe’s constitutional rights. In December of 1971, Weddington made that case before the United States Supreme Court. She was only 26 years old.
Speaker 2: We’ll hear arguments number 18 zero against the way this is running.
Speaker 6: And you may proceed whenever you’re ready. Mr. Chief Justice. And they have pleased the Court. The instant case is a direct appeal.
Speaker 1: Weddington had arrived at the court an hour early that morning to avoid running into anti-abortion protesters. Once inside, she learned that the lawyers lounge had only a men’s bathroom. The Supreme Court was in a strange place in December 1971. Just a few months earlier, two justices had stepped down due to failing health. Those departures meant the president had another two vacancies to fill.
Speaker 2: And so it is now quite possible that Richard Nixon’s major achievement in American government will be that he was in office when four at least vacancies occurred on the Supreme Court and he was called upon to fill them. It’s going to be the Nixon Court for a long time.
Speaker 1: As always, Nixon had a plan. Author Jim Robonaut.
Speaker 3: He had come up with the idea that since he had two nominations at once, that he could take a chance and try to put a woman on the court. He’d been pressured by his wife, by his daughters. Martha mitchell, who was married to the attorney general. John Mitchell was very proactive about putting a woman on the court.
Speaker 1: Nixon was no feminist, but he thought that appointing the first woman justice might help him win reelection. So two months before the arguments in Roe, he was all set to nominate a judge from California named Mildred Lilly. But then he heard from the Chief Justice.
Speaker 3: Warren Burger, went and told the attorney general of the United States that if Nixon put a woman on the court, he would resign. And he actually wrote out a handwritten letter of resignation.
Speaker 1: Nixon backed down that fall. He nominated William Rehnquist and Lewis Powell, but they wouldn’t join the court until 1972. So when Sarah Weddington began her oral argument in December 1971, she was facing seven men and two empty seats. One of the men sitting on the bench that day was Harry Blackman. He didn’t think the court had any business dealing with abortion until those empty seats were filled. Here’s Blackman from a 1995 oral history.
Speaker 4: It seems to me that this was a basic and serious error. Some of us realized that we had an important case on our hand and a bull by the tail, so to speak.
Speaker 1: There were a couple of reasons why the court heard Roe and Doe anyway. Blackman understood that these cases were important, but nobody knew quite how important they would become. That’s because no one expected the Supreme Court to rule on the legality of abortion nationwide. When a similar case had come up the year before, the justices had ruled narrowly on jurisdiction grounds. It seemed likely that Roe and DOE would be resolved in a similar way and that the justices would simply return them to a lower court. But Sarah Weddington wanted her case to be different. She began her argument in Roe by laying out the facts.
Speaker 6: Jane Roe, the pregnant woman, had gone to several Dallas physicians seeking an abortion but had been refused care because of the Texas law. She filed suit on behalf of herself and all of those women.
Speaker 1: She told the seven male justices that pregnancy can completely disrupt a woman’s life, that she could be forced to quit school, get dismissed from her job, or lose control of her own body.
Speaker 6: And we feel that because of the impact on the woman, this certainly in as far as there are any rights which are fundamental, is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.
Speaker 1: Weddington didn’t mention her own abortion. She wouldn’t speak publicly about it until decades later.
Speaker 5: Thank you.
Speaker 2: Thank you, Mrs. Weddington. Mr. Floyd.
Speaker 1: When Weddington and her co-counsel finished up, the lawyer representing the state of Texas got up to present his side.
Speaker 2: Mr. Chief Justice, please come forward. It’s an old joke, but when an argument argues against two beautiful ladies like this, they’re going to have the last word.
Speaker 1: No one laughed at the joke. The lawyer did get some laughs in this exchange with Justice Byron White.
Speaker 2: I think she makes her choice. Right. And then she becomes pregnant. That is the time of the choice. But once a child is born, a woman no longer has a choice and the pregnancy may terminate that choice. That. Maybe she makes a choice when she decides to live in Texas. Or. Now proceed.
Speaker 1: When the justices met afterwards, there wasn’t a clear consensus on how they would rule in the two abortion cases. But the chief justice did know who he wanted to write the opinions. His good friend, Harry Blackman.
Speaker 5: Well, one thing that people may assume is that he had some passionate interest in the subject of abortion.
Speaker 1: Linda Greenhouse covers the Supreme Court for The New York Times. She’s also the author of the biography Becoming Justice Blackman.
Speaker 5: He really had never given it much thought. I think he was not particularly comfortable with thinking or talking about sex. Of course, sex leads to pregnancy. So, you know, it’s not an issue he would have chosen to engage in.
Speaker 1: Blackman was never sure why Berger assigned him those cases. Greenhouse suspects. It’s because the chief justice thought his friend would write narrow opinions, the kind that wouldn’t change the rules to dramatically. Back in Minnesota, Blackman had also served as legal counsel for the Mayo Clinic. He had deep respect for doctors and their work. So while this wasn’t the assignment Blackman would have chosen for himself, he did begin to see it as an opportunity. This could be his chance to distinguish himself from his friend Warren Burger.
Speaker 1: But more importantly, he thought that if he applied himself, he could find a solution that most Americans would accept and solve one of the country’s most vexing problems. First, he had to figure out what he thought about abortion. Early on, he took a poll around the dinner table asking his wife and three adult daughters for their views.
Speaker 5: You know, I’ve got this assignment. And what do you think about abortion? And there was a divergence among them. There was a conservative daughter and a daughter in the middle and a, you know, radical feminist daughter.
Speaker 1: After a few minutes of debate, he said he needed to go lie down. Bachmann had only asked his daughters what they thought to make small talk. He didn’t think of Roe as primarily a women’s rights issue. Instead, he thought of it as a set of legal, medical and historical questions. Blackman loved doing research and could sometimes get a little carried away. His opinion upholding baseball’s antitrust exemption included a list of 88 great players and a long footnote about the poem Casey at the Bat. As soon as he got a signed Roe and Doe, he asked the librarian at the Mayo Clinic to send over some material on abortion. He worked almost around the clock and found comfort in his daily routine, a set of habits he’d picked up as a circuit court judge.
Speaker 3: He’d drive into the court in a little VW bug. He was very proud of the VW bug. He thought it was very energy efficient.
Speaker 1: Blackmon’s clerk, Harold Koh.
Speaker 3: He’d get to the court at about seven. We would all arrive a little after seven, and then at about 730 he’d come out and he’d always ask every day, Does anybody want to go to breakfast? You know, that’s why that’s why we were there. Yes.
Speaker 1: Ko says that Blackmon always ordered the same thing from the Supreme Court cafeteria. Scrambled eggs and toast.
Speaker 3: Once he completely stunned us by ordering pancakes, we thought he was on drugs. Like what? One afternoon he said I was feeling a little frisky today.
Speaker 5: He was just about the only one who actually ate in the cafeteria. The justices do have their own private dining room. You know, tourists probably didn’t have any notion that this older man, surrounded by four younger people, was actually just as Harry Blackmun.
Speaker 1: In the early months of 1972, Blackmon spent his time puzzling over Roe v Wade and Doe v Bolton.
Speaker 5: I think he had a good deal of uncertainty, and his inclination was to write a rather limited opinion. So that’s where he was kind of tending.
Speaker 1: Blackman’s initial idea was to declare the Texas and Georgia Statutes void for vagueness, tossing them out because they weren’t written clearly enough. That would have been just the kind of narrow ruling that Chief Justice Berger wanted. But the more Blackman thought about it, the more convinced he became that he needed to answer a much bigger question Is abortion a constitutional right? If the court didn’t decide now, he knew they were just going to face the same problem again and again. Blackman was an institutionalist. He cared about how the Supreme Court was perceived. So even as he contemplated a major ruling, he worried that it wouldn’t be seen as legitimate because Roe and Doe hadn’t been heard by the full court.
Speaker 4: I felt that the issues were important and sensitive enough to deserve resolution by a court of nine rather than seven.
Speaker 1: So he came up with a plan. The Supreme Court would rehear the cases now that the two empty seats had been filled. Chief Justice Burger liked that idea. The court’s leading liberal hated it.
Speaker 5: Justice William Douglas was very upset about this. He kind of smelled a rat. He thought, okay, these are two Nixon appointed justices. They will be antiabortion.
Speaker 4: And he felt that the chief was not fixed in his position and might change his tentative vote and perhaps influence me by that change. It was an unpleasant and indeed rather an ugly conference.
Speaker 1: But Lachman got his way. Rohan Joe, we’re set to be re argued. That meant the cases would sit on pause until October 1972. The delay bought Blackmon more time to research. Over the summer, with the Supreme Court out of session, he went back home to Minnesota. When he got there, he set up a workspace in one of the ornate wood paneled rooms at the Mayo Clinic Library.
Speaker 5: Part of what he got was the history of abortion, which tells us that criminalizing abortion is a rather recent phenomenon in human history. And he found that very interesting.
Speaker 1: Surrounded by old books, Blackmon didn’t really talk to anyone while he was there, but the librarians had a sense of what he was up to because of what he was asking for.
Speaker 5: He got the the Public Health Journal articles about the vast harms that were being caused by back alley abortions. He was very interested in the medical professions involvement and was there a sense in medical ethics that abortion violated the Hippocratic Oath, which is do no harm?
Speaker 1: This is how intense Blackman was about his research. He looked up multiple translations of the Hippocratic Oath and confirmed that it prohibited abortion. But he also learned that most thinkers in ancient Greece actually approved of abortion in defiance of the oath. He did similar research on laws from ancient Rome and on common law and English law.
Speaker 4: We talked on the phone. I think we may have talked once a week or once every ten days.
Speaker 1: Blackmon’s clerk George Frampton, stayed on in D.C. that summer to help with the abortion cases. Frampton worked on putting together the legal argument while the justices did his historical research in Minnesota.
Speaker 4: He would mostly talk to me about what he was finding and what he was writing, and I think he may have sent me some draft material at one point.
Speaker 1: Blackmon had become more and more convinced that laws restricting abortion shouldn’t stand. His research had shown that throughout history and across cultures, abortion had typically been considered okay early in a pregnancy. So as he developed his argument, he thought the court should make the procedure legal, at least for some period of time. Back in D.C., Frampton felt good about where the opinion was headed. So did the other clerks he worked with.
Speaker 4: This was with one or two exceptions. This group of, you know, roughly 25, 26 people were we’re all pretty much children of the sixties.
Speaker 1: So was there this sense that the clerks were kind of rooting for the legal reform?
Speaker 4: Absolutely.
Speaker 1: Frampton’s biggest worry was that Blackmon’s next round of Clarks would feel differently and try to change the justices mind. So when the summer was over, he took every precaution he could.
Speaker 4: I left the last version of that draft with his secretary locked in her drawer so that the justice would be the first person to see it when he returned. And so we agreed that the new Clark’s would not get a chance to look at the opinion. I was trying to keep it away from them.
Speaker 1: And did that work?
Speaker 2: It worked.
Speaker 1: That opinion locked away in a drawer, laid out when abortion should be legal and why it should be protected. Now, it would be up to Harry Blackman to get the rest of the Supreme Court to sign on. We’ll be right back.
Speaker 1: In August of 1972, the Gallup organization published the results of a new poll on abortion.
Speaker 2: That shows that two out of three Americans interviewed believe the question of abortion should be settled between a woman and her doctor.
Speaker 1: 64% of Americans wanted to liberalize the nation’s laws. Support with highest among Republicans and people who had graduated from college. But even 56% of Catholics were in favor. Harry Blackman saw that poll. He put a copy in his file on Roe v Wade. And when Blackman headed back to Washington, D.C., in September, he found another document waiting for him the draft opinion that his clerk, George Frampton, had locked in a desk drawer. That draft proposed a constitutional basis for legalized abortion in the early 1970s. There were plenty of ideas about what that basis might be. The lawyers in women versus Connecticut had proposed nine different constitutional arguments. Sarah Weddington took a similar approach in Roe v Wade.
Speaker 6: We had originally brought the suit alleging both the due process of the Equal Protection Clause of the Ninth Amendment and a variety of other than.
Speaker 2: Anything else.
Speaker 6: That might have brought, I.
Speaker 5: Think.
Speaker 1: The equal protection and due process clauses that Weddington mentioned are both found in the 14th Amendment. Due process had been the argument that swayed Judge John Newman in Abilene versus Markel, the Connecticut case you heard about in episode three. This was the idea that the Constitution protected the right to privacy, that there were some acts that the state had no right interfering with because they were fundamental to life, liberty or property.
Speaker 6: That liberty to these women would mean liberty from being forced to continue the unwanted pregnancy.
Speaker 1: There’s no explicit right to privacy in the Constitution. But Blackmon’s clerk, George Frampton, found the concept of an implicit right persuasive.
Speaker 4: I would say, from a constitutional point of view, the notion that the autonomy of your body and the right to privacy is something that ought to be and is appropriately recognized in the Constitution, you know, made a great deal of sense.
Speaker 1: The right to privacy became the foundation of Frampton’s draft opinion.
Speaker 4: This was not a brand new concept. You know, the court had begun to recognize a right of privacy and the right of autonomy to make certain fundamental decisions about your own body and your own life.
Speaker 1: Those rights first emerged in the 1960s into groundbreaking decisions by the Liberal Warren Court.
Speaker 5: That whole line of cases that sweeps in Griswold and the right to contraception, that sweeps in loving versus Virginia, the right to marry a person of a different race. Those are really substantial, coherent rights that then become Roe v Wade.
Speaker 1: That’s Slate senior legal writer Dahlia Lithwick. She says that in the case of Roe, the right to privacy encompasses a whole lot more than the personal deliberations between a woman and her doctor.
Speaker 5: I just think that when we talk about liberty and bodily autonomy and family autonomy, that it’s not about shameful, whispered conversations that the state should stay out of. No, it is about foundational ideas about who gets to decide what your family looks like.
Speaker 1: Those ideas are baked into the history of the 14th Amendment. It was one of three amendments ratified after the Civil War to right the wrongs of slavery.
Speaker 5: That fundamental right is reverse engineered from an understanding of the failures of the Bill of Rights to codify the protections that slaves didn’t get right. All of that is what is contemplated, both in the words of the 14th Amendment and then in the line of cases that arises from them that if you were not free in your body, in your family, in your ability to bear children, in your ability to not be sterilized against your will, in your ability to marry the person of your choice, you are not free.
Speaker 1: It’s unclear whether Blackman was thinking about this quite so expansively. He did write himself a note saying that a fundamental personal liberty is involved here. But he also described that freedom in more mundane terms, calling it the right to receive medical care.
Speaker 1: Blackman wrote those notes before the Supreme Court reheard Roe v Wade in October 1972.
Speaker 6: We are once again before this court to ask relief against the continued enforcement of the Texas abortion statute. And I ask that you affirm.
Speaker 1: The arguments hadn’t changed since the case first came up the previous December. But there were now nine justices on the court, not just seven to get a majority. Harry Blackman had to win over four of those justices. But Blackman wanted more than just a54 decision. He was looking for a margin that felt decisive and that would show that the Supreme Court had solved abortion. So that’s what he was thinking about when the justices met after the second round of arguments. Who he could get on his side, according to Linda Greenhouse. Two men were a no go.
Speaker 5: Justice Rehnquist and Justice Byron White. And they were going to be in dissent no matter what Harry Blackmun had written. It wasn’t a matter of persuading them. They were not persuadable. They just thought this was no business for the federal courts in the Constitution and nothing to say about it.
Speaker 1: One of the justices did surprise his colleagues. Lewis Powell was a Nixon appointee and a believer in judicial restraint. But Powell had once been asked for his legal help when a woman died of an abortion administered in her home. Harry Blackman remembered hearing that story.
Speaker 4: Lewis Powell was deeply disturbed by that incident, and it might well have influenced Roosevelt.
Speaker 1: Powell told the other justices that he was voting for legalized abortion. He also made an important suggestion that Roe v Wade, not Doe v Bolton, should be the court’s lead case. The abortion law at issue in DOE was newer and less restrictive than the Texas statute in Roe v Wade. If the court ruled on Roe, they cover all the issues in Doe v Bolton and a whole lot more. That meant they’d have a better chance of resolving the abortion debate all across the country.
Speaker 1: Blackman agreed with that plan and circulated a new draft. The liberal William Douglas was pleasantly surprised by the opinion and signed on very quickly. William Brennan and Thurgood Marshall came on board as well. Another Justice Potter Stewart said he’d agree with just a few modifications. Men had more than just a bare majority. He had six votes to legalize abortion in the United States. With that settled, the justices still had to answer a very big question how long into a pregnancy should abortion be legal?
Speaker 1: Blackman suggested that the end of the first trimester could be a dividing line, that abortion would be legal before 12 weeks and illegal after. But he admitted that he wasn’t sure if that was the right approach. Again, Justice Lewis Powell stepped in. Powell had been convinced by one of his clerks that making abortion illegal after the first trimester was a bad idea.
Speaker 3: Jim Robinson He was of the opinion that that was too early in a pregnancy that a lot of women didn’t know they were pregnant by then or weren’t able to face up to it or couldn’t tell their spouse or boyfriend parents.
Speaker 1: Thurgood Marshall agreed. He told Blackman that working class women would need more time to get organized and gather their resources. Louis Powell proposed a solution that they go with the standard established in the Connecticut case, I believe, versus Markle. In that ruling, Judge John Newman said that abortion should be legal until viability, the point when a fetus could survive outside the womb.
Speaker 3: Eventually, Powell gets to men and says, I think it should be viability.
Speaker 1: Blackman took Powell’s advice. Viability would be the dividing line. But even so, the reasoning in the ROE opinion is still constructed around trimesters.
Speaker 5: In the first trimester. The state may not interfere at all with the woman’s choice to terminate a pregnancy in the second trimester. The state can regulate abortion for the sake of women’s health.
Speaker 1: Blackman understood that that abortions became more dangerous as pregnancies progressed. So he said that states could make efforts to limit that danger, like by insisting an abortion be performed in a hospital. Then Bachmann turned to the third trimester, which was right around the same time as the point of viability. He acknowledged that at that point, the state did have an interest in protecting the life of the fetus.
Speaker 5: For the third trimester, the state can ban abortion, but has to have exceptions for life and health. So that was what came out of the quite late in the day conversations among the justices.
Speaker 1: By December 1972, the decision was almost final. Five other justices were on board with Harry Blackman. The only question was what Chief Justice Warren Burger would do. Burger had wanted his old friend to issue a limited ruling, but the chief justice didn’t get his way. Bachmann had taken his own path. Finally, he could show the world that he wasn’t Burger’s twin. All the chief justice could do was choose which side to be on.
Speaker 4: George Frampton In the end, Burger, who had been on the other side of the case all the way switched, I am told, the last day to make it 7 to 2 instead of 6 to 3.
Speaker 1: All of this should have been infuriating to Richard Nixon. The president had come out against abortion. He’d also promised to change the Supreme Court, and now the court was legalizing abortion. Thanks to the justices he’d appointed. But the truth was, he wasn’t all that troubled by it. The only thing he’d cared about was winning reelection. And when he did that, abortion didn’t feel so important anymore. Harry Blackman had gotten what he wanted a72 opinion with votes from four liberals and three conservatives. On January 22nd, Blackman delivered the court’s ruling from the bench. His wife, Dotty, was in the gallery to watch. His opinion begins with an aside about how complicated and difficult the court’s work had been.
Speaker 5: We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this in.
Speaker 1: Typical Harry Blackman fashion. The opinion in Roe is meticulously written and chock full of.
Speaker 5: History and medical legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries, we bear in mind to justice Holmes admonition.
Speaker 1: If you go read it yourself, you’ll likely find it a bit dense. And you might be surprised by how little consideration is given to women’s lives and how pregnancy can affect them. That didn’t bother Sarah Weddington. She thought the decision was strong and clear and she was elated that the right to privacy now extended to abortion. Near the end of his opinion, Blackman lays out the country’s new reality that women must be allowed to access abortion to the point of viability.
Speaker 5: In view of all this. We do not agree that by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.
Speaker 1: And his final words are emphatic and decisive.
Speaker 5: Our conclusion that Article 1196 is unconstitutional means, of course, that the Texas abortion statutes as a unit must fall. It is so ordered.
Speaker 3: Frankly, when they decided the case, they were all of one mind that they had solved this issue once and for all. It was now done.
Speaker 4: That was part of why the court was willing to go with a fairly detailed opinion, because they hoped that this would not be a problem that.
Speaker 7: Would come back.
Speaker 2: The other major story today is the decision of the United States Supreme Court that handed down a historic decision about abortion.
Speaker 1: The decision in Roe v Wade was not the lead story in the national news that day.
Speaker 2: We have just received a bulletin from the Associated Press from Texas that reports that former President Lyndon Johnson is dead. Lyndon Johnson has died.
Speaker 3: So it virtually got no attention at all in the paper. Harold Koh You know, it wasn’t until the letters started coming in that it started to dawn on Blackmun what it meant.
Speaker 1: We’ll be right back. I want to take a moment to acknowledge the International Women’s Media Foundation, the global non-profit that funds and supports women and non-binary journalists. They saw the value of our reporting and dove in early to make slow burn seventh season possible. The IWM F has enabled this type of work for more than 30 years and they can use your support to check them out at IWM dot org or go follow them on social media to learn more.
Speaker 1: Less than 48 hours after the ruling in Roe v Wade, Harry Blackman flew to Cedar Rapids, Iowa. He was there to give a speech to the local chamber of Commerce. He wasn’t prepared for who had come to see him. There were dozens of protesters inside and outside the building. So many that Blackman needed police protection. They held signs that said adoption, not abortion. And legality doesn’t make morality.
Speaker 4: It was an experience I’d never had before that I just saw shrimp growing up in the east side of Saint Paul, Minnesota would encounter this national reaction to something that I had done in the midst of such a controversy.
Speaker 1: Blackman didn’t speak to the demonstrators, but in his remarks, he insisted that the court had not authorized abortion on demand. He also said that he’d done a lot of soul searching before writing his opinion. He called his deliberations the bitter night. If his goal was to win over opponents of abortion, he did not succeed.
Speaker 2: The abortion question is loaded with the emotional arguments of life, death and morality, not the kinds of issues a court can finally settled.
Speaker 5: The decision was met with just outrage, horror and disbelief among people who were opposed to abortion.
Speaker 1: That’s journalist Cynthia Gorney. She says that within a matter of weeks, a bunch of smaller pro-life organizations came together. Those groups were led by activists like Jack and Barbara Wilkie, who you heard about in episode two.
Speaker 5: They transform into a national movement that now has a single goal. Now, they’re not fighting about a bunch of different state laws that that either have or have not come into into existence. They’ve got a single goal, and the single goal is make this decision go away.
Speaker 1: Blackmon started getting hate mail right away. He told a doctor from the Mayo Clinic. I’ve been called names I have not heard since my childhood. One letter writer told Blackman that God would punish him for Roe just as severely as the Nazis would be punished for running the gas chambers.
Speaker 4: I read most of the mail. If there were, there was so much of it at the time that there were several boxes in my storeroom that I never did get to read.
Speaker 1: Blackman didn’t just get hate mail. He also got stacks and stacks of thank you notes from women all over the country. One told him that the ruling had lifted a ten year wait from her head. She said that she’d had an illegal abortion at 23. That decision had allowed her to finish a graduate degree and to grow up a bit before she gave birth to a son and daughter. She wrote to Blackman. If I can feel secure in being able to control my own body, then I can hope to give something back to the world. Linda Greenhouse says that the thank you letter is matched up with public opinion. In 1973, most Americans backed the Roe decision.
Speaker 5: In fact, polling in the immediate weeks and months after Roe show that public support for the right to abortion grew as the result of the court’s opinion. And there were editorials and papers all over the country saying, Oh, finally, we brought some common sense to this question.
Speaker 1: Blackman really didn’t consider the impact of abortion laws on women’s lives as he was writing the Roe opinion. But as he got more distance from the decision, his perspective changed.
Speaker 3: Were you ever reduced to tears by reading these letters?
Speaker 4: Almost. Almost even to this day. Of people who have had the experience of back alley abortions and the prior days and what it meant to them to look back and know that that wasn’t going to happen to their daughters.
Speaker 1: Even as Blackmon’s feelings about the opinions strengthened, it continued to get criticism and not just from opponents of abortion. Dahlia Lithwick again.
Speaker 5: Well, this was Ruth Bader Ginsburg’s huge knock on Roe, that she feels that if the world had just left her bringing the litigation she wanted to bring, it would have been planted in the equal protection right to not be discriminated against on the basis of your sex.
Speaker 1: Why didn’t the court focus on equal protection? After all, it was one of the arguments that Sarah Weddington had proposed. But Dahlia says, you have to understand the lay of the land in the early 1970s.
Speaker 5: To sort of say, oh, in hindsight, in 1973, he should have written that assumes way, way, way more about where the law was in terms of protecting women equal protection. In 1973, the court was just creeping up toward saying, you know, women who are a class that deserve protections. I mean, that’s where we were.
Speaker 4: As far as Justice Ginsburg’s criticism is concerned. It’s a valid point of view to take, but it’s an easy one to take after 20 or 25 years. It could not have been decided back in 1972, 73. On the grounds, she suggests. So with all respect to Justice Ginsburg and she wasn’t on the firing line at that time.
Speaker 1: Over his years on the bench, Blackman became Roh’s chief defender. And that decision changed him.
Speaker 3: Harold Koh I think when he was appointed, he felt like the world basically functioned correctly and that institutions are good. And I just think he just started to see over and over again that that only a very tiny percentage of our population has the good fortune to be protected by these elite institutions. And then the question is, who is going to watch out for their interests? I think Roe versus Wade was part of it. He decided, I’m going to watch out for their interests.
Speaker 1: It was a radical transformation for the man who saw himself as old number three, a justice who had come to the court not sure if he belonged in the 1980s and 1990s. Blackman would spend summers at the Aspen Institute teaching a seminar on law once a year. He would tell the story of the most important case of his career for whoever wanted to listen.
Speaker 5: Cynthia Gorney We would be quiet. We were told there would be no questions and Harry Blackmun would talk about Roe v Wade or as he put it in his very sort of delicate way of speaking, he would say Roe against Wade.
Speaker 4: I should state that I do not give this review of Roe against Wade very often.
Speaker 5: And Harry Blackman would just get up and talk about what it was like to write that opinion, to work on the opinion and what it was like afterward, what the response was like, the way he spoke about it, the tone of his voice and the toll it had obviously taken on him was incredibly moving to everyone in the room. I have no idea what the personal beliefs of each of the participants in that seminar might have been with regard to abortion. But we were all knocked over by the sound of this old man talking about this thing that he had done.
Speaker 4: It was a decision that had to be made if the country was to go down the road toward the complete emancipation of women. Period.
Speaker 5: As he finished, there was this silence in the room. Nobody knew what to do. And when I looked around, I saw that all of the women in the room had started to cry. Including myself, I will say. And I remember thinking, why are we crying? And I think it was because one is so rarely in the presence of history in that way. And it was. It just got us.
Speaker 1: As I reported this show over the past six months, I asked nearly all the women I spoke with the same thing. I have a question because I’m 32 years old. I have grown up.
Speaker 5: With.
Speaker 1: Roe v Wade and birth control and all of these things just being available. But I’ve been reading a lot about this period, and and I was wondering if you could just talk a little bit about what it was like for for women like me who have not had to really experience that in our lives personally.
Speaker 5: Being able to control your reproductive life means being able to control your life and not being able to control your reproductive life. Man you can be excluded from most parts of what was a than a male controlled society. You know, the shame, the danger of going to people who were unskilled. The risk that it gave to our our lives. The darkness of it all. I was hearing these stories in the early seventies, and some of those stories therefore went back to the twenties, thirties and forties. And I remember thinking, I want to do something to make sure that no woman ever has to tell a story like this again.
Speaker 1: Making abortion illegal doesn’t make it go away. What it does is determine what kind of abortions happen and whether women will be punished for them. That’s one of the lessons of Shirley Wheeler’s story. So there’s a way in which the right to abortion is about practicalities. If the abortions women get are safe or dangerous, criminal or legal. But the women I spoke with, the women who fought for this. Right, they also understood that they could not be equal without it, that it wasn’t about a backup plan or the vague notion of security. It was about knowing and truly believing that their lives had value.
Speaker 5: I wanted every woman and girl to have the full human experience without fear of being relegated to a particular stereotype, a particular role that society had for girls and women.
Speaker 1: In 1985, someone fired a bullet into Harry Blackman’s apartment in Washington, D.C.. It was thought to be a random accident, but Blackman accepted the court’s offer of extra security. From that day forward, he was driven to the court every day. He gave up his beloved VW Bug. Harry Blackman died in 1999, just a few years before that. He told his clerk, Harold Koh, that he’d never lost faith in his most important decision.
Speaker 4: I make no apology for role against Wade. As I say, I think it was right in 1973 and I think it is correct today. And I’ll stick with my guns on that.
Speaker 1: Slow Burn is produced by Samira Tazari, Sophie Summergrad Soul Werthan and me Susan Matthews. Derek John is senior supervising producer of Narrative Podcasts, Editorial Direction by Josh Levin Derek John and Johanna Zorn Merritt. Jacob is our technical director. Our theme music was composed by Alexis Cuadrado. Derek Johnson did our cover art based on a photo provided by Robert Wheeler.
Speaker 1: We had research help from Bridget Dunlap and production help from Madeleine Ducharme. Some of the audio you heard in our show comes from the Library of Congress. This reporting was supported by the International Women’s Media Foundation’s Howard G. Bucket Fund for Women Journalists. We also have a special announcement. We’re doing a live event. If you’re in New York on Thursday, June 23rd, that’s tomorrow. Join us at the Bell House in Brooklyn to hear a special slow burn live show featuring Nancy Stearns. You’ll also hear from my colleagues at Slate who have been covering the Supreme Court. Get your tickets at Slate.com slash supreme.
Speaker 1: Slow Burn is a production of Slate Plus Slate’s membership program. You can sign up for Slate Plus to hear this season’s bonus episodes. We go behind the scenes and you get access to some exclusive interviews that explore more about the history of abortion in America. In this week’s bonus episode, I talk with Dahlia Lithwick about why people say that Roe was poorly decided and whether the court should have approached the ruling differently.
Speaker 1: To listen to that head over to Slate.com slash slow burn to sign up now. We couldn’t make a slow burn without the support of Slate Plus. So please consider becoming a member at Slate.com slash slow burn. And if you’re looking for breaking news analysis of everything going on with the Supreme Court right now, you should subscribe to Slate’s legal podcast Amicus, hosted by Dahlia Lithwick. Amicus has new episodes every Saturday this month to tell you all about the major decisions being released this SCOTUS term, and there will be special episodes for Slate plus members to find Amicus wherever you listen.
Speaker 1: Special thanks to Rebecca Onion. Cristina Carter. Ritchie. Evan Chang. Seth Brown. Rachel Strum. Ben Richmond, Cleo Levin, Chao Two. Bill Carey, Lowen Liu and Alicia montgomery, Slate’s VP of Audio. Today we have some extra thank you’s to give to the people who made this series possible. Thanks again to the IWM for the support. Thanks also to Laura Bennett, Alison Benedict, Gabe Roth and Jared Holt for getting this going.
Speaker 1: Everyone at Slate who covered my regular job so I could work on this. Everyone on the slow burn team who made this endeavor so rigorous, collaborative and fun. Jeff Bloomer Even though he won’t listen to this. Katie Rayford For her endless enthusiasm for this show. Dahlia Lithwick and Mark Joseph Stern for always answering my legal questions. Shannon Paulus and Heather Swindell for being my office confidant, Jim and Judy MATTHEWS for their endless support, and Zack Custer for believing in this project and me the whole time. Thanks for listening to our show. Follow slow burn on Spotify or wherever you get your podcasts.