Roe V. Wade - Before The Supreme Court

Before The Supreme Court

Roe v. Wade reached the Supreme Court on appeal in 1970. The Justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they decided Younger v. Harris, as they felt that the appeals raised difficult questions on judicial jurisdiction, and United States v. Vuitch, where they considered the constitutionality of a District of Columbia statute that criminalized abortion except where the mother's life or health was endangered. In Vuitch, the Court narrowly upheld the statute, though in doing so, it treated abortion as a medical procedure and stated that the physician must be given room to determine what suffices as a danger to (physical or mental) health. The day after they announced their decision in Vuitch, they voted to hear both Roe and Doe.

Arguments were scheduled by the full Court for December 13, 1971. Before the Court could hear the oral arguments, Justices Black and Harlan retired. Chief Justice Burger asked Justices Stewart and Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. According to Blackmun, Stewart felt that the cases were a straightforward application of Younger v. Harris and recommended that the Court move forward as scheduled.

Following a first round of arguments, all seven Justices tentatively agreed that the law should be struck down, but for varying reasons. Burger assigned the role of writing the Court's opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law's vagueness. Justices Rehnquist and Powell joined the Supreme Court too late to hear the first round of arguments. Additionally, Blackmun felt that his opinion was an inadequate reflection of his liberal colleagues' opinions. In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order (he and the other liberal Justices were suspicious that Rehnquist and Powell would vote to uphold the statute), but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion. The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Jay Floyd for Texas.

Blackmun continued work on his opinions in both cases over the summer recess, despite the fact that there was no guarantee that he would be assigned to write the opinions again. Over the recess, Blackmun spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. After the Court heard the second round of arguments, Powell stated that he would agree with Blackmun's conclusion but pushed for Roe to be the lead of the two abortions cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. White was unwilling to sign on to Blackmun's opinion, and Rehnquist had already decided to dissent.