Editing Roe v. Wade (section)

==Hearing the case==
[[File:Rose Fosco.png|thumb|Rose Fosco, who before 1968 posed as a woman seeking an abortion during [[sting operation]]s for the [[Chicago Police Department]]. As an undercover officer, she worked to break up illegal abortion rings.<ref>[http://pubinfo.co.door.wi.us:8080/jsp/RcWebImageViewer.jsp?doc_id=1e8fc801-90a4-4104-8e86-19a1ea0947dc/wsbd0000/20170120/00000572&pg_seq=1&search_doc=&query1_modifier=AND&query1=fascos%20in%20wonderland&query1_field=CONTENT Lewis Carroll, even you wouldn't have believed Madison Scene] by Keta Steebs, ''Door County Advocate'', Volume 114, Issue 74, November 26, 1975, page 1</ref>]]

===Postponement===
''Roe v. Wade'' reached the Supreme Court when both sides appealed in 1970. It bypassed the Court of Appeals for the Fifth Circuit<ref>{{cite web|url=https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e564|access-date=2024-04-05|first=Merle|last=Weiner|title=Roe v Wade Case (US)|publisher=Oxford Constitutional Law|date=August 2016}}</ref> because 28 USC § 1253 authorizes a direct appeal to the Supreme Court in cases concerning the granting or denial of a civil injunction decided by a three judge panel.<ref>{{cite news|access-date=2024-04-05|url=https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1415&context=fac_pubs|date=2022|first1=Michael|last1=Solimine|title=The Strange Career of the Three-Judge District Court: Federalism and Civil Rights, 1954-76 and Civil Rights, 1954-76|first2=James|last2=Walker|publisher=Case Western Reserve Law Review|volume=72|number=4}}</ref>
The case continued under the name ''Roe v. Wade'' instead of being switched to ''Wade v. Roe''. The justices delayed taking action on ''Roe'' and a closely related case, ''[[Doe v. Bolton]]'', until they had first decided certain other cases. One case they decided first was ''[[Younger v. Harris]]''. The justices felt the appeals raised difficult questions on judicial [[jurisdiction]].

Another case was ''[[United States v. Vuitch]]'', in which they considered the constitutionality of a [[Washington D.C.|District of Columbia]] statute which banned abortion except when the mother's life or health was endangered. The Court upheld the statute on the grounds that the word "health" was not [[Vagueness doctrine#Unconstitutional vagueness|unconstitutionally vague]] and placed the [[Burden of proof (law)|burden of proof]] concerning dangers to the life or health of the mother on the prosecutor instead of on the person who had performed the abortion.<ref>[https://supreme.justia.com/cases/federal/us/402/62/ ''United States v. Vuitch'', 402 U.S. 62 (1971)], ''justia.com''</ref>

Justice [[William O. Douglas]] wrote a lengthy dissenting opinion to this case. He argued that the right to marital privacy and the limitation of family size from ''[[Griswold v. Connecticut]]'' also applied here, although he acknowledged that "on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus' destruction." He also challenged the majority opinion with a series of hypothetical questions asking whether "health" might also include the stigma of having an [[Legitimacy (family law)|illegitimate]] child, anxiety from the pregnancy being unwanted, the physical work of raising a child, the financial drain from the added expense of another child, and far off health risks that may never actually materialize in a similar fashion to how risks were warded off with [[Prophylactic surgery|prophylactic]] appendectomy.<ref>[https://caselaw.findlaw.com/us-supreme-court/402/62.html United States v. Vuitch] (1971), No. 84 Argued: January 12, 1971, Decided: April 21, 1971, ''findlaw.com''</ref> Douglas' dissent made a similar legal argument to the one used two years later in ''Roe v. Wade''.<ref>{{cite book|url=https://books.google.com/books?id=AZlzCQAAQBAJ&pg=PA56|title=The Politics of Abortion in the United States and Canada: A Comparative Study|first=Raymond|last=Tatalovich|location=New York|publisher=Routledge|year=1997|page= 56|isbn=978-1-317-45539-4 }}</ref> The following day after their decision was announced, the court voted to hear both ''Roe'' and ''Doe''.{{sfnp|Greenhouse|2005|pp=77–79}}

According to Blackmun, Stewart felt the cases were a straightforward application of ''Younger v. Harris'', and enough justices agreed to hear the cases to review whether they would be suitable for federal as opposed to only state courts.<ref name=forsythe98>{{harvnb|Forsythe|2013|p=98}}</ref> This sort of review was not about the constitutionality of abortion and would not have required evidence, witnesses, or a record of facts.<ref>{{harvnb|Forsythe|2013|p=92}}</ref> The oral argument was scheduled by the full Court for December 13, 1971. Before the Court could hear the oral argument, 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. They recommended that the Court continue on as scheduled.{{sfnp|Greenhouse|2005|p=80}}

===Oral argument===
As she began speaking for the oral argument, Sarah Weddington was unaware that the Court had decided to hear the case to decide which courts had jurisdiction to hear it rather than as an attempt to overturn abortion laws in a broad ruling. She began by bringing up constitutional reasons why the Court should overturn Texas's abortion law, but Justice Stewart asked questions directed towards the jurisdiction question instead. Weddington replied that she saw no problem with jurisdiction and continued to talk about a [[Constitutional right#United States|constitutional right]] to abortion.<ref>[https://books.google.com/books?id=ofbhHLhOhH8C&dq=%22In+one+case%2C+Sarah+Weddington%2C+a+poised%22&pg=PT265 The Brethren: Inside the Supreme Court] by Bob Woodward and Scott Armstrong, New York: Simon and Schuster, page 1979, page 265</ref> Overall, she spent between 20 and 30 minutes discussing jurisdiction and procedure instead of constitutional issues.<ref name=forsythe98/>

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".<ref name="salon">Sant, Geoffrey. "[http://www.salon.com/2013/07/26/8_horrible_courtroom_jokes_and_their_ensuing_legal_calamity 8 horrible courtroom jokes and their ensuing legal calamities]", ''Salon.com'' (July 27, 2013): "The title of Worst Joke in Legal History belongs to one of history's highest-profile cases. Defending Texas's abortion restrictions before the Supreme Court, attorney Mr. Jay Floyd decided to open oral argument with a [[Sexism#Sexist jokes|sexist joke]]." Retrieved August 10, 2010.</ref> 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; abortion rights lawyer [[Margie Pitts Hames]] thought that Chief Justice Burger "was going to come right off the bench at him. He glared him down."{{sfnmp|Malphurs|2010|1p=48|Garrow|1994|2p=526}}

McCorvey did not attend either of the oral arguments along with her two lawyers. After talking McCorvey out of getting an illegal abortion and getting her name signed on an affidavit for the [[lawsuit]], Weddington did not speak again with McCorvey until four months after ''Roe'' was decided.<ref>''[https://digitalcommons.slc.edu/cgi/viewcontent.cgi?article=1033&context=womenshistory_etd Jane Roe Gone Rogue: Norma McCorvey's Transformation as a Symbol of the U.S. Abortion Debate]'' by Christianna K. Barnard, MA thesis, Sarah Lawrence College, May 2018, pages 20–21, (pages 38–39 of the pdf) and [https://books.google.com/books?id=Dj2CAlbeX8UC&pg=PT36 Won by Love: Norma McCorvey, Jane Roe of Roe v. Wade, Speaks Out for the Unborn as She Shares Her New Conviction For Life] by Norma McCorvey and Gary Thomas, Nashville, Tennessee: Thomas Nelson, 1997, Chapter 5, The Shadow Plaintiff pages 36–37</ref>

===Initial discussions===
After the first argument session, Burger assigned the task of writing the Court's opinions for both ''Roe'' and ''Doe'' to Blackmun.<ref name=schwartz103/> Douglas suggested to Blackmun that Burger assigned the opinions to him out of malicious intention, but Blackmun disagreed. He knew that Burger could not write it himself because the subject of abortion was too controversial, and his opinions might get rejected by the majority. He also understood why the other justices could not be assigned to write the opinions: Douglas was too liberal for the public to accept his word. Likewise, he might split the Court's vote by writing something radical. In addition, the quality of his opinions had suffered recently. Brennan was the only Catholic on the Court, and he would have to face Catholic political groups which were against abortion. If Marshall wrote the opinions, the ruling would be perceived as being directed towards African Americans, and he would have to face the displeasure of African American political groups. Stewart would have trouble going far enough in legalizing abortion.<ref>[https://books.google.com/books?id=F5xBEAAAQBAJ&pg=PA96 The Justices Behind ''Roe v. Wade'': The Inside Story, Adapted from The Brethren] by Bob Woodward and Scott Armstrong, New York: Simon and Schuster, 2021, page 96</ref>

At this point, Black and Harlan had been replaced by William Rehnquist and [[Lewis F. Powell Jr.]], but the first argument had already occurred before they became Supreme Court justices.<ref name="greenhouse81–88"/> Justice Blackmun worked on a preliminary opinion for ''Roe'' which argued that Texas's law was unconstitutionally vague.<ref name=schwartz103>{{harvp|Schwartz|1988|p=103}}</ref> This approach accommodated the claims of some doctors who were concerned that prosecutors might disagree with them over what constituted "life". Blackmun thought this approach would be a good way to avoid controversy which would come with saying there was a fundamental right to abortion. Brennan and Douglas disagreed with Blackmun and wrote to him that instead he needed to focus on privacy.<ref>[http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/05/Goluboff_0.pdf Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights] by Risa L. Goluboff, ''Stanford Law Review'' Volume 62, Issue 5, page 1379 (page 20 of the pdf)</ref> After communicating with the other justices, Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views.<ref name="greenhouse81–88">{{harvp|Greenhouse|2005|pp=81–88}}</ref> In March 1972, the court issued a ruling in ''[[Eisenstadt v. Baird]]'', a landmark case which applied the earlier marital privacy right now also to unmarried individuals.<ref>[https://books.google.com/books?id=FKfTCgAAQBAJ&pg=PA200 Defenders of the Unborn: The Pro-life Movement Before Roe v. Wade] by Daniel K. Williams, New York: Oxford University Press, page 200</ref>

Douglas wrote to Blackmun in May 1972 that he thought there were four judges who were definitely willing to rule in the majority—himself, Brennan, Stewart, and Marshall.<ref>[https://books.google.com/books?id=o5ssEAAAQBAJ&pg=PA354 Constitutional Law for a Changing America: Rights, Liberties, and Justice] by Lee Epstein, Kevin T. McGuire, and Thomas G. Walker, 11th edition, London: SAGE Publications, Part Two: Civil Liberties, Chapter Ten: Privacy and Personal Liberty, page 354 and [https://archive.org/details/isbn_9780140177985/page/132/mode/2up A Question of Choice] by Sarah Weddington, New York: Penguin Books, 1993, page 132–133</ref> Blackmun at one point thought all seven justices wanted to vote in the majority.{{sfnp|Greenhouse|2005|p=81}}

In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the [[:wikt:reargument|reargument]] order because he and the other liberal justices were suspicious that Rehnquist and Powell would vote to uphold the [[Texas abortion statutes (1961)|Texas abortion statutes]]. He was coaxed out of the action by his colleagues, and instead his dissent was merely mentioned in the reargument order without further statement or opinion.{{sfnp|Garrow|1994|p=556}}{{sfnp|Greenhouse|2005|p=89}} The case was reargued on October 11, 1972. Weddington continued to represent the pseudonymous Jane Roe, and Texas Assistant Attorney General Robert C. Flowers replaced Jay Floyd for Texas.<ref>{{Cite web|title=Roe v. Wade 410 U.S. 113|url=https://www.law.cornell.edu/supremecourt/text/410/113|access-date=2020-10-24|website=LII / Legal Information Institute, Cornell Law School|language=en}}</ref><!--Probably in {{harvnb|Garrow|1994|pp=569–570}} but if not why not say "...Texas Assistant Attorney General [[Robert C. Flowers]] represented Wade."-->

A June 1972 memo written by Douglas to his colleagues discussing the case was [[news leak|leaked]] to and published in ''[[The Washington Post]]'' before the decision was published.<ref name="leak">{{cite news |last1=Treisman |first1=Rachel |title=The original Roe v. Wade ruling was leaked, too |url=https://www.npr.org/2022/05/03/1096097236/roe-wade-original-ruling-leak |access-date=3 May 2022 |publisher=[[NPR]] |date=3 May 2022 |language=en}}</ref>

===Drafting the opinion===
[[File:George Frampton (cropped).jpg|thumb|upright=0.8|George Frampton, [[law clerk]] to Justice Harry Blackmun during the 1971–72 term]]
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. He talked daily on the phone with [[George T. Frampton|George Frampton]], his 28-year-old law clerk who stayed behind in Washington, D.C.<ref name=browder93>{{cite book |last1=Browder |first1=Sue Ellen |title=Subverted: How I Helped the Sexual Revolution Hijack the Women's Movement |date=2015 |publisher=Ignatius Press |isbn=978-1-58617-796-6 |pages=[https://archive.org/details/subvertedhowihel00brow/page/93 93]–94 |url=https://archive.org/details/subvertedhowihel00brow |url-access=registration |quote=george frampton jr. |access-date=August 24, 2018}}</ref> Frampton researched the history of abortion using a book authored by Lawrence Lader, the founding chairman of what is now called [[NARAL Pro-Choice America]]. Blackmun's papers made available since his death contain at least seven citations<ref>{{cite book |last1=Browder |first1=Sue Ellen |title=Subverted: How I Helped the Sexual Revolution Hijack the Women's Movement |date=2015 |publisher=Ignatius Press |isbn=978-1-58617-796-6 |pages=[https://archive.org/details/subvertedhowihel00brow/page/95 95]–96 |url=https://archive.org/details/subvertedhowihel00brow |url-access=registration |quote=george frampton jr. |access-date=August 24, 2018}}</ref> for Lader's 1966 book, ''Abortion''.<ref name=browder93/> Chapter 16 of his book, "A Blueprint for Changing U.S. Abortion Laws" predicted that if abortion were to be legalized, "the possibility of community opposition is slight".<ref>''Abortion'' by Lawrence Lader, Indianapolis: The Bobbs-Merrill Company, 1966, page 151</ref> Lader also predicted that "If such a theoretical case was carried to a high court, perhaps even the [[Supreme Court of the United States|U.S. Supreme Court]], and the judges confirmed a broad interpretation of the meaning of a threat to life, undoubtedly a landmark in abortion decisions would be reached."<ref>''Abortion'' by Lawrence Lader, Indianapolis: The Bobbs-Merrill Company, 1966, page 154</ref>

The historical survey for ''Roe'' also referenced two articles by Cyril Means,<ref>In the [https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe v. Wade''] (''justia.com'') majority opinion, "Means I" denotes [https://heinonline.org/HOL/LandingPage?handle=hein.journals/nyls14&div=33&id=&page= The Law of New York Concerning Abortion and the Status of the Foetus, 1664–1968: A Case of Cessation of Constitutionality], ''New York Law Forum'', Volume 14, Number 3, Fall 1968; "Means II" denotes [https://heinonline.org/HOL/LandingPage?handle=hein.journals/nyls17&div=25&id=&page= The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?], ''New York Law Forum'', Volume 17, Number 2, 1971</ref> who served as [[counsel]] to NARAL. In the articles, Means misrepresented the common law tradition in ways that were helpful to the ''Roe'' side.<ref name="keown">[[iarchive:sim journal-of-law-medicine-ethics summer-2007 35 2/page/326/mode/2up|Abortion Distortion: A Review of ''Dispelling the Myths of Abortion History'' by Joseph W. Dellapenna]] by John A. Keown, ''The Journal of Law, Medicine & Ethics'', Volume 35, Issue 2, Summer 2007, page 326; quotes cited to ''Dispelling the Myths of Abortion History'' by J. W. Dellapenna, Durham: Carolina Academic Press, 2006, page 684; also cited as footnote 171 on page 30 (page 28 of the pdf) of [https://static1.squarespace.com/static/55d78cd0e4b00365e96a9dcc/t/59e110cfcd39c37ad08b742f/1507922128972/Back+to+the+Future+of+Abortion+Law.pdf] {{Webarchive|url=https://web.archive.org/web/20220121042955/https://static1.squarespace.com/static/55d78cd0e4b00365e96a9dcc/t/59e110cfcd39c37ad08b742f/1507922128972/Back+to+the+Future+of+Abortion+Law.pdf|date=January 21, 2022}} Back to the Future of Abortion Law: ''Roe''{{'s}} Rejection of America's History and Traditions by John Keown, ''Issues in Law and Medicine'' Volume 22, Issue 1, Summer 2006; footnote 171 cites [https://books.google.com/books?id=CiRwCQAAQBAJ&pg=RA3-PA1959 Liberty and Sexuality: The Right to Privacy and the Making of ''Roe v. Wade''] by David J. Garrow, 1994, pages 853–54; in Garrow, the memo is quoted as footnote 41 and cited as "David [Tundermann] to Roy [Lucas], "Legislative Purpose et al.," 5 August 1971, Lucas Box 13."</ref> [[Roy Lucas (lawyer)|Roy Lucas]], the principal attorney assisting Weddington and Coffee, had previously received a memo from his colleague David M. Tundermann about Means's scholarship. The memo stated that the conclusions in Means's articles "sometimes strain credibility."<ref name=keown/> It also stated:<ref name=keown/>
<blockquote>Where the important thing is to win the case no matter how, however, I suppose I agree with Means's technique: begin with a scholarly attempt at historical research; if it doesn't work, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.</blockquote>

After the Court held the second argument session, 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. Byron White was unwilling to sign on to Blackmun's opinion, and Justice Rehnquist had already decided to dissent.{{sfnp|Greenhouse|2005|pp=93–95}}

During the drafting process, the justices discussed the trimester framework at great length. Powell had suggested that the point where the state could intervene be placed at viability, which [[Thurgood Marshall]] supported as well.{{sfnp|Greenhouse|2005|pp=96–97}} 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."<ref name=revelations/> In the same memo he suggested that the end of the first trimester seemed more likely to get support from other justices and allowed states the ability to adjust their statutes. He was of the impression that doctors were concerned that recovering abortion patients would take up too many hospital beds, and that abortion patients later than the first trimester were more likely to require hospital beds than those whose fetuses were aborted earlier.<ref name=revelations>[http://www.davidgarrow.com/File/DJG%202000%20AmLawRoevWadeLFP.pdf Revelations on the Road to Roe] by David Garrow, ''American Lawyer'', Volume 22, May 2000, page 4 of the pdf</ref> Contrary to the justices who preferred viability, Douglas preferred the first-trimester line.<ref name=savagelatimes>{{cite news |last1=Savage |first1=David G. |title=Roe Ruling: More Than Its Author Intended |url=https://www.latimes.com/archives/la-xpm-2005-sep-14-na-abortion14-story.html |access-date=October 11, 2021 |work=Los Angeles Times |date=September 14, 2005}}</ref> Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to state legislatures, though he joined Blackmun's decision.<ref>Kmiec, Douglas. "[https://books.google.com/books?id=ZWqd8YuT9R8C&pg=PA97 Testimony Before Subcommittee on the Constitution, Judiciary Committee, U.S. House of Representatives]" (April 22, 1996), page 97, [https://web.archive.org/web/20080821022951/http://members.aol.com/abtrbng2/roememos.txt Archived] August 21, 2008</ref> [[William J. Brennan Jr.|William Brennan]] proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.<ref name="Greenhouse 97">{{harvp|Greenhouse|2005|p=97}}</ref>