Courts

45 Years Ago, Roe Started The Era Of Choice -- Will This Court End It?

Roe is still a headache, at least in the minds of those who want to overturn it.

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I am a great fan of time-travel novels. They may vary in quality and imagination, but they almost always have held my attention. A couple of my favorites: Time and Again by Jack Finney, This Magic Moment by Gregg Estabrook, and probably my all-time favorite, Stephen King’s 11/22/63. Its main character goes back in time to try to prevent the assassination of President John F. Kennedy. The title of the book is the date of his murder, way before many of you were alive. One of the touchstones for us dinosaurs is asking each other where we were on that day, and most of us can indeed remember that day in exquisite, unfortunate detail.

Let’s time travel back to 1973, 45 years ago. Here are a few of the more important historical events of that year, again before many of you were alive and if alive, barely sensate.    Just in January alone in that tumultuous year, Richard Nixon began his second term as president (only to have it cut short the following year by Watergate), the Vietnam War ended, and all on the same day, January 22, 1973, former President Lyndon Johnson died, George Foreman (yes, the grill guy) defeated Joe Frazier for the heavyweight title, and the Supreme Court issued its opinion in Roe v. Wade.

I’m not going to talk about what Roe held; if anyone reading this doesn’t know, then read the opinion written by Justice Harry Blackmun, 410 U.S. 113 (1973).  Only Associate Justices Rehnquist and Byron White dissented. There were no women on the high court in 1973; that did not happen until President Reagan nominated Sandra Day O’Connor in 1981.

Roe was framed as a challenge to the criminal statutes prohibiting abortion.  Linda Greenhouse, the New York Times Supreme Court reporter, wrote a fascinating book back in 2006 called Becoming Justice Blackmun about his Supreme Court journey. She devotes some measure of the book to Justice Blackmun’s quandary about what to do about Roe.

Roe has come to stand for the proposition that women have the right of choice to determine whether to terminate a pregnancy in the first trimester without any government interference. The case was also about privacy and the threat to physicians who performed abortions. Greenhouse writes that the Court emphasized that it was the liberty of doctors that was threatened by the criminalization of abortion.  (Some may disagree with this characterization, but so be it.) The fact that 45 years later we will most likely be still litigating the issue is discouraging for me and all women, especially my contemporaries.

I was in my early 20s when Roe was decided. For all women, especially those of child-bearing age, it hopefully meant an end to back-alley or overseas abortions (if you could afford them).  It hopefully meant an end to hideous side effects in the hands of one unskilled in terminating early-stage pregnancies. It hopefully meant an end to “shotgun weddings.” Roe was a touchstone for women, just as the Kennedy assassination was for all of us of a certain age.

Roe started the era of choice: for many women, including me, it did not mean that termination was the only outcome; it meant that women had choices, a novel concept at the time, and apparently still is now to some people. Lest anyone forget, women only won the right to vote in 1920.

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Originally argued in 1971, Roe was held over for reargument in the October 1972 term after Associate Justices John Harlan II and Hugo Black retired, to be replaced by William Rehnquist and Lewis Powell.

Justice Blackmun knew firsthand about unwanted pregnancies. His middle daughter, Sally, became pregnant in 1966 while a sophomore in college. She dropped out of college, married her boyfriend, and miscarried less than three weeks after the wedding. The marriage did not last.

The “choices” women had before Roe consisted of the following: carry the baby to term or find a physician (or someone who was less-than qualified) to terminate the pregnancy and hope that it was done properly, so that there was no collateral damage (e.g., inability to get pregnant in the future).

Greenhouse writes that while working on the Roe opinion, Justice Blackmun asked his family at dinner one night for their views on abortion. As recounted by the youngest daughter Susan at a dinner honoring her father, the opinions voiced by his four female family members left little doubt as to how they felt about the issue. His wife was in favor of choice with some restrictions. None of his daughters thought that abortion should be illegal. As Greenhouse recounts Susan telling the story, after two of his daughters gave “leftish” answers, “…[Justice Blackmun] put down his fork mid-bite and pushed back his chair.  ‘I think I’ll go lie down,’ he said. ‘I’m getting a headache.’”

So, ending our time-travel journey and returning to present day, here we are, 45 years later, and I have a headache, because Roe is still a headache, at least in the minds of those who want to overturn it. The latest Quinnipiac poll shows that just about two thirds of the voters do not want Roe overturned, and so they also have headaches. Taking two aspirin and calling the doctor in the morning is not going to cure this headache.

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In this hyper-partisan, hyper-critical atmosphere, whoever is nominated to replace Associate Justice Anthony Kennedy will be in for a very rough ride, especially with social media (non-existent in 1973) weighing in. I shudder to think about the tweetstorms to come from everywhere.

The battle over the upcoming nomination may well make the fight over appellate Judge Robert Bork’s nomination back in 1988 look like a well-mannered garden party. And we all know (or should know) how that turned out.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for more than 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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