Politics drove ’92 abortion decision, papers show

? As the 1992 presidential election approached, the author of the Supreme Court’s landmark Roe v. Wade ruling worried that there were no longer enough votes on the court to uphold the right to abortion — and that his ideological opposites on the court would play politics with the issue.

Justice Harry A. Blackmun suspected that Chief Justice William H. Rehnquist wanted to neutralize or overturn Roe but would wait until after the fall elections so that Republicans wouldn’t pay a political price, the late justice’s private papers show.

A majority of justices on both sides of the abortion fight seemed ready to hear a case that tested Roe, but with the deadline for the year’s calendar of cases approaching, Rehnquist postponed a discussion of the case.

“The obvious reason,” Blackmun wrote in an internal memo in January 1992, was to avoid “the political repercussions of a decision by this court in an election year.”

The court risks its reputation if it makes such political choices, Blackmun told his colleagues.

Roe nearly fell

Blackmun’s extensive records from 24 years on the court were opened at the Library of Congress on Thursday, the fifth anniversary of his death. The Nixon appointee had retired in 1994.

As it happened, the court quickly agreed to hear the abortion case, with only Rehnquist and Justice Sandra Day O’Connor voting not to do so, Blackmun’s papers show. The court heard oral arguments in Planned Parenthood v. Casey that April, and at first it seemed that Roe might fall.

Blackmun’s notes show that Rehnquist initially led a five-justice majority to overrule. The four other justices with Rehnquist were Byron White, Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. Rehnquist himself was to write the majority opinion.

Indeed, Rehnquist was at work on his majority ruling when Kennedy sent a note to Blackmun.

Changing positions

“I need to see you as soon as you have a few free moments,” Kennedy wrote. “I want to tell you about a new development in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.”

Kennedy had changed his mind, and ultimately agreed to a compromise position with Justices O’Connor and David Souter that upheld a woman’s right to abortion largely free from state regulation.

“It was an unusual case and an unusual issue because in the vast majority of cases, politics doesn’t come into play,” said Stephanie Dangel, one of Blackmun’s law clerks in 1992.

Blackmun had written the Roe ruling in 1973, and had guarded it from previous attack from conservative justices.

Consequences

After a meeting with Kennedy and the other two, Blackmun picked up a pink memo pad and scribbled, “Roe sound.”

He also wrote, “RC agony and traitor,” an apparent reference to the Roman Catholic Kennedy’s concern that he would be seen as a turncoat on abortion.

Blackmun spoke more fully about that concern in an interview with a former law clerk that is part of the archive opened Thursday.

Blackmun said that Kennedy “seemed deeply concerned about being saddled with this issue for the rest of his career. He was especially worried about the attention he would get as a Roman Catholic reaffirming Roe.”

The Blackmun papers show some at the court were also thinking of other, more political ramifications. The “troika,” as the three centrist justices became known, would probably pay a price for disagreeing with the White House view on abortion.

“Once this opinion comes out, there will be no more speculation about a Vice President O’Connor or a Chief Justice Kennedy,” Dangel wrote to her boss.