Musings on the Supreme Court-XI Narasimhan Vijayaraghavan.

Musings on the Supreme Court-XI
Narasimhan Vijayaraghavan.

Sorry, for the rather longish digression as we get back to the intriguing and suspense thriller that Roe v. Wade came to be. Ever since that day on 22nd Jan, 1973, the Republicans have been angling to have it over turned. It is an eyesore for their conservative values. Donald Trump, not the most moralist being was propped up by a huge pro life lobby. In the US of A Roe v. Wade is not in the books meant to be read by lawyers and academicians. It lives in the bedrooms, drawing rooms and dinner tables of ordinary Americans and debated and discussed on school, college and university platforms. Roe v. Wade is huge ammunition for ideological food fights on television and there are Podcasts dedicated to this case.

How Roe v. Wade came into being is a fascinating story involving unbelievable twists, turns, manipulations, manoeuvres which went behind the scenes literally. And how long a group of Justices in the majority ‘had made up their mind no matter what, to kill the abortion laws’. Just as T R Andhyarjuna has pointed out how ‘hurriedly’ Kesavananda Bharati was decided to render it a fait accompli of sorts, it appears Roe v. Wade also has a such a chequered history. Mysterious facts surfacing only after 35 years of the decision on Jan 22,1973. Read on.

There have been several books written on Roe v. Wade and continue to be written. There is a historical practice before the SCOTUS to release the ‘classified papers’ of the Justices in every other case ,after a period of time, just as Intelligence material also gets declassified. It is nothing new the world over as we have had Gandhi/Nehru/Bose/Patel papers being released every now and then. But, nothing of the kind happens in relation to our Supreme Court. Why not now? Or, they did not prepare such notes or papers in deciding cases unlike on SCOTUS. And/or notes exchanged between Justices, requiring to be kept as a permanent record. In fact, the Justices on the Supreme Court of India today have interns in the style of Law Clerks as in the US and they do assist the Judges in research. Are they retained as part of the record of the judgment itself?No one know. Surely I don’t know. My access stops short of such enquiry or revelations.
To begin with, Roe was decided on Jan 22,1973. And it was heard on Oct,11,1972. But that was a case of being ‘reargued’ before The Nine who decided. In reality, it was ‘argued’ for the first time on Dec 13, 1971 when there were only Seven Judges on the Bench ( as Justice Hugo Black had died on Sept,17, 1971 and Justice John Marshall Harlan died on Dec,19, 1971). The decision went 7:2 with Justice Harry Blackmun Lewis writing for the majority . Justices Potter Stewart,Chief Justice Warren E Burger and William O Douglas wrote concurring opinion. Justices Thurgood Marshall and F.Powell Jr., were in the majority but did not write any separate opinions. The two in dissent were Byron White and William Rehnquist.

Powell and Rehnquist Take Seats on the Supreme Court
By Fred P. Graham Special to The New York Times
Jan. 8, 1972

F Powell Jr. and William Rehnquist came to be appointed only after the swearing in of Richard Nixon, as President for the second time in Jan,20,1972. But the Seven on the Bench had already heard the case when originally ‘argued’ on Dec,13, 1971 itself.. “So much preparatory work and notes had been exchanged between the Seven already even before the two new appointees joined the Bench”. Before we move into the suspenseful facts, let us assimilate the decision as it came about.

The Nine who decided Roe v Wade
The Supreme Court decided in favor of Roe in a 7-2 decision. Justice Blackmun wrote the opinion for the majority, which recognized that a woman’s choice whether to have an abortion is protected by her right to privacy. Justices Stewart, Burger and Douglas wrote concurring opinions. Justices White and Rehnquist dissented.

Roe v. Wade Decision Announced

The majority determined that a woman’s right to decide whether to have an abortion involved the question of whether the Constitution protected a right to privacy. The justices answered this question by asserting that the 14th Amendment, which prohibits states from “depriv[ing] any person of … liberty … without due process of law,” protected a fundamental right to privacy. Further, after considerable discussion of the law’s historical lack of recognition of rights of a fetus, the justices concluded “the word ‘person,’ as used in the 14th Amendment, does not include the unborn.” The right of a woman to choose to have an abortion fell within this fundamental right to privacy, and was protected by the Constitution.

A woman’s right to choose to have an abortion was not considered an absolute right. The Court stated that government restrictions on a woman’s right to choose were subject to the highest standard of review, that of strict scrutiny. This level of review requires that in order to be enforceable, a government regulation of this right must be shown to be narrowly tailored to a meet a compelling state interest. The justices noted that states did have some legitimate interests in regulating or prohibiting abortions. The first interest was the protection of the health of the mother from the dangers of abortion procedures; the second was the protection of the life of the fetus. While these interests were not very strong in the early stages of pregnancy, they became stronger (more compelling) in the later stages of the pregnancy. Striking a balance between a woman’s right to privacy and a state’s interests, the Court set up a framework laying out when states could regulate and even prohibit abortions.

According to the framework, in the first trimester (the first three months of the pregnancy), a woman’s right to privacy surrounding the choice to have an abortion outweighed a state’s interests in regulating this decision. In the first trimester, having an abortion does not pose a grave danger to the life and health of the mother, and the fetus is still undeveloped. The state’s interests are not yet compelling, so it cannot interfere with a woman’s right to privacy by regulating or prohibiting her from having an abortion during the first trimester. During the second trimester, the state’s interests become more compelling as the danger of complications increases and the fetus becomes more developed. During this stage, it may regulate, but not prohibit abortions, as long as the regulations are aimed at protecting the health of the mother. During the third trimester, the danger to the woman’s health becomes the greatest and fetal development nears completion. In the final trimester the state’s interests in protecting the health of the mother and in protecting the life of the fetus become their most compelling. The state may regulate or even prohibit abortions during this stage, as long as there is an exception for abortions necessary to preserve the life and health of the mother.

In his dissenting opinion, Justice Rehnquist argued that the framers of the 14th Amendment did not intend for it to protect a right of privacy, a right which they did not recognize, and that they definitely did not intend for it to protect a woman’s decision to have an abortion. Justice Rehnquist further argued that the only right to privacy is that which is protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures. Finally, he concluded that because this issue required a careful balance of the interests of the woman against the interests of the state, it was not an appropriate decision for the Court to make, but instead was a question that should have been left up to state legislatures to resolve.

Now back to the ‘machinations by four Justices on the Bench’ when they were in the majority of Seven, upon death of two from The Nine.
(Author is practising advocate in the Madras High Court)