Supreme Court Came Close to Nullifying Roe v. Wade

by Tom Strode

Recently released papers of the late Harry Blackmun provide new details on how the U.S. Supreme Court nearly acted in 1992 to overturn, in effect, the Roe v. Wade decision, according to recent reports.

However, it was not the first time the justices came close to such an action before retreating. The papers of the late Thurgood Marshall demonstrated the court almost undermined Roe in a 1989 case as well.

Blackmun served as an associate justice for 24 years and was best known for writing the 1973 Roe opinion, which struck down all state laws against abortion. His papers were made public in early March, five years after his death.

In those papers were further details of how Roe survived when Blackmun's fellow justice, Anthony Kennedy, switched his vote, depriving Chief Justice William Rehnquist of the majority he expected in a 1992 abortion case. Rehnquist, Kennedy, and three other justices had voted to uphold abortion restrictions in a Pennsylvania law, and the chief justice had circulated a proposed majority decision attacking Roe, when Kennedy changed his mind, according to the New York Times.

The Times reported Kennedy sent Blackmun a letter, saying, "I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as  welcome news."

The next day, Kennedy informed Blackmun that two of their associates-Sandra Day O'Connor and David Souter-and he had covertly become a team to uphold Roe. While most of the state restrictions still were maintained, the Kennedy-O'Connor-Souter opinion reaffirmed a right to abortion in a 5-4 ruling.

Something similar had occurred in 1989 in Webster v. Reproductive Health Services, according to documents in Marshall's papers, the Washington Post reported in 1993.

Rehnquist circulated four draft majority opinions that supported abortion limitations in a Missouri law and brought Roe under attack, according to the Post. Blackmun wrote a dissent in which he said, "Roe no longer survives," the Post reported.

This time, O'Connor changed her mind before the decision was announced. While agreeing to support restrictions in the law as part of a 5-4 ruling, she refused to endorse the attack on Roe.

Baptist Press

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