But as is well known, one of the junior justices on the Court, David Souter, secretly struck an alliance with Justices Anthony Kennedy and Sandra Day O’Connor to rescue Roe.
Garrow was right. There is a “very private” document that sheds light on Souter’s ruling: a memo written by one of his clerks that argued for precisely the compromise Casey struck between legal abortion and its regulation. The memo argued that the importance of legal precedent demanded that the Supreme Court not overturn Roe. The reputation of the Court as a neutral arbiter of law, wrote the clerk, depended upon it.
The memo is historic. Here, and in my book, it is quoted for the first time.
The origin of “Jane Roe”
Norma soon found an unlicensed doctor who would. But she could not afford his $500 fee. She was scared, besides, she later recounted, “to turn my body over to him.”
There was reason to think that the law might soon change; in the coming months, Alaska, Hawaii, New York and Washington would legalize abortion. Still, abortion was then only legal in Oregon and California, and not explicitly banned in Washington, DC. And while it was available to nonresidents in the latter two, Norma had no money to board a plane.
Nineteen years later, in 1992, that right was in jeopardy when the Supreme Court, and its presumed 5-4 conservative majority, readied to rule on Casey.
A historic memo, written for the ‘fifth vote to overturn Roe v. Wade’
David Souter was a deeply grounded person; the writer Janet Malcolm would note that he possessed a “moving absence of self-regard.” He had grown up in a farmhouse in the New Hampshire town of Weare, where he had returned to live after his schooling at Harvard and Oxford. He stayed in Weare until the Supreme Court took him from it, in October 1990, as an unmarried man of 51.
Souter knew that abortion was likely to return to the Court during his tenure. His first term on the Court was ending when, in June 1991, as former Harry Blackmun clerk Edward Lazarus later wrote in his book “Closed Chambers,” he asked his four outgoing clerks to write down their thoughts on the matter. Just one argued in favor of Roe, that clerk handing Souter 32 crystalline pages that centered on stare decisis — the doctrine that held, as Souter did, that legal precedents should ordinarily not be overruled. On the matter of abortion, wrote the clerk, that doctrine was particularly compelling. “Roe,” he wrote, “implicates uniquely powerful stare decisis concerns.”
Prominent among those concerns, wrote the clerk, was that the influence of Roe on the selection of justices posed a particular danger. “If Roe is overruled,” he argued, “the public will understand that the Court’s reversal is explainable solely by reason of changes in the composition of the Court.” Thus, he concluded: “The damage to the public understanding of the Court’s decisions as neutral expositions of the law . . . would be incalculable.”
All of this Souter read. And he had concluded that the Court ought to reaffirm Roe when, in conference two days after oral arguments in Casey, a majority of his fellow justices concluded the opposite.
Souter was dismayed. And as Rehnquist, the Chief Justice, prepared to write a majority opinion in support of Pennsylvania and its abortion regulations, Souter, as I note in my book, set out to rescue Roe, reaching out to Justice O’Connor, and then, with her, to Justice Kennedy.
A ruling that spoke not of privacy, but equality
The ruling was a compromise. Half of it, which Blackmun and John Stevens now joined, upheld the “essential holding of Roe,” namely, the right to an abortion through viability. The other half adopted a new subjective standard of abortion regulation, O’Connor’s “undue burden.” Souter, O’Connor and Kennedy concluded that four of the five Pennsylvania regulations cleared that standard, and that became the decision of the Court: Blackmun and Stevens joined the troika in striking down the spousal notification requirement, and the remaining four justices voted with them to uphold the other regulations.
The “undue burden” standard, which was now effectively the law, did away with the trimester framework of Roe, which left abortion to the discretion of a woman and her doctor during the first trimester, but permitted the state to regulate (if not outlaw) it during the second. Henceforth, states could impose abortion regulations from the point of conception. “Even in the earliest stages of pregnancy,” the ruling explained, “the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term . . .”
It was a remarkable sentence. For it spoke not of privacy — the legal ground that Roe was built upon — but equality, the principle that future Justice Ruth Bader Ginsburg and others had famously asserted ought to undergird Roe instead.
Souter, in black robe and graying hair, then turned to the legal underpinning of Casey — the reliance on precedent that, he said, now called upon both sides of the abortion debate “to end their national division by accepting a common mandate rooted in the Constitution.” He continued, reading aloud a passage that resonates today:
The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect.
But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the Court’s legitimacy beyond any serious question.
Souter finished speaking. He had been true to himself and to the example of his hero, Justice Harlan. And in so doing, he had built upon the arguments of his clerk, that unnamed legal scholar whose analysis prefigured key elements of the Court’s historic decision.