What if Roe had been decided in 1972 and not 1973?
The Supreme Court first heard oral argument on Roe v. Wade and Doe v. Bolton in 1972, and voted 5 to 2 to strike down the abortion laws of Texas and Georgia. The lead case was initially supposed to be Doe v. Bolton.
1972: The landmark case of
Doe v. Bolton recognizes by a 6 to 1 vote that the privacy principal of Griswold v. Connecticut applies to a woman's right to choose an abortion so as to preserve her own life or health. The Court declares it is incapable of determining when life begins for purposes of bans, but the regulations which "unduly burden" the decision between woman and doctor, or place the decision in the hands of another, are deemed unconstitutional. Requirements that abortions only be performed in JCAH-approved hospitals is struck down as irrational. Requirements that an additional two-doctor concurrence and that an additional three-doctor board approval are deemed invalid as assigning the decision away from the woman and her doctor, whom law effectively delegates the question of necessity to. A residency requirement was struck down on separate grounds (no discrimination against out of state residents). Requirements that abortions be performed in hospitals and by licensed doctors were upheld. The statute was upheld against a vagueness challenge on the grounds that it gave sufficient deference to the doctor, and that when coupled with it being the prosecution's burden to demonstrate a lack of necessity beyond a reasonable doubt and a good faith requirement, was valid. The Court emphasized that malpractice liability and intra-professional regulation were sufficient means of regulating doctor behavior.
- Chief Justice Burger concurred in part, stating that he believed the two-doctor concurrence requirement was not unduly burdensome. He emphasized the holding only applied to so-called "therapeutic abortions," for purposes of life, health, incest, rape, and so forth.
- Justice Brennan concurred, if only to note that the question of when life began was an issue not settled by the Court's decision and depended upon then-present understandings of law. He contended that when the state's interest in life became compelling was yet to be decided. He also felt the hospital requirement was unconstitutional, as other clinics could be equally capable.
- Justice Douglas concurred, but argued that the the state's interest prior to the common law point of quickening (between 16 and 18 weeks) was not compelling. He also contended the opinion should have allowed for abortion for nontherapeutic reasons as well.
- Justices White dissented. White agreed that the majority's opinion did not go beyond life and health, but questioned the degree of deference given. His disagreement was otherwise narrow - stating that the opinion had been based on matters not clearly in the record of the lower court.
1972: The case of
Roe v. Wade, the less mentioned companion case to Doe v. Bolton, strikes down a Texas abortion law on the grounds that it was unconstitutionally vague, as it only included an exception for life. The decision was 6 to 1. The Court explained that medical decisionmaking is inherently vague, and that while doctors are trained to make decisions based upon life and health, a life exception alone gave insufficient discretion to avoid liability. Absent sufficient discretion, the incentives of doctors (criminal penalty and loss of professional license) would be to sever to avoid a "chilling" of the doctor's decision making in such a way that conflicts with their duty to prioritize the patient. A majority of the country's abortion laws were struck down in the process. Blackmun pointed to the opinions of Justices Stewart and Douglas the year prior in United States v. Vuitch, which indicated that good faith and objectively reasonable determinations of necessity by doctors were criminally immune from prosecution.
- Chief Justice Burger, joined by Justice Stewart, concurred, but emphasized additionally that at oral argument Texas already conceded it had a longstanding unofficial policy of not enforcing its law in cases of rape or incest.
- Justice White dissented, contending the Court had implicitly overruled the opinion of US v. Vuitch from the year prior. He questioned how a law could be be not-vague if it included life or health, but a narrower statute could be vague.
- Justice Douglas concurred, joined by Brennan and Marshall. Pointing to the case of Papachristou v. Jacksonville, decided that same term, he emphasized that long-tolerated conduct viewed as harmless should be subject to more stringent vagueness analysis.
1972 Election: The Doe and Roe decisions came out at the beginning of the June, transforming the Democratic primary. McGovern's lead dampened in the crucial winner-take-all California primary, delivering the delegates to Hubert Humphrey. McGovern's lead in New Mexico dampened as well, delivering the state to George Wallace. While McGovern entered the Democratic Convention with a strong lead over other contenders - 1,105.9 of the 1,509 needed to be nominee (Humphrey, the second place contender, had 657.3), it was insufficient to win on at convention. Despite lesser fellow-progressive candidates delivering support to McGovern, McGovern would only have 1,456 votes on the first ballot. "Anybody but McGovern" forces would proceed to rally around Henry "Scoop" Jackson, whose name had been put forward by the leader of the Anybody-but-McGovern forces Jimmy Carter.
The Democratic Convention would nominate Henry Jackson as nominee and Jimmy Carter as Vice Presidential nominee. Jackson's speech emphasized that the Democratic Party was
not the party of "Acid, Amnesty, and Abortion." The speech was interpreted as a dig at McGovern, but also energized pro-life voters shocked that Richard Nixon's two judicial nominees had delivered the Doe and Roe opinions. Vice President nominee Carter discussed the need to dissuade abortions through family support and assistance to single mothers.
Significant chunks of the Nixon coalition would defect in 1972 back to the Democratic Party. Jackson's anti-bussing stance and perceived law-and-order disposition, modest anti-Nixon blowback from the Doe decision, and more traditional labor and foreign policy positions, coupled with the appeal of the young Jimmy Carter to the emergent evangelical movement and southerners who had been put off in recent years but the Democratic party, delivered the White House to the Democrats in 1972. Jackson also gained the support of many women by indicating his preference to put a woman on the Supreme Court, though he made no firm commitments.
1973: The case of
Abele v. Markle reaches the United States Supreme Court. The lower court had struck down provisions of Connecticut's abortion law on the grounds that it was so old and there was so little a record on why it was passed that it was not possible to adjudicate its reasonableness. The Supreme Court upheld the decision on a 6-3 basis, but emphasized the highly narrow scope therein. The majority cited language from Jefferson: "I set out on this ground, which I suppose to be self evident, ‘that the earth belongs in usufruct to the living’: that the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when himself ceases to be, and reverts to the society. [...] What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals." The Court further cited - to the frustration of the dissenters - the concurring opinions of Douglas and Burger in Doe v. Bolton for an increased skepticism of
- Justices Burger, White, and Rehnquist dissented - arguing that it was an invitation to judicial activism and absurd that an identical law could be passed a year later.
- NOTE: OTL this case influenced the viability rule of Roe. Here, it gets reviewed on different grounds.
- Eventually, the "ancient laws' doctrine would bubble up into the constitutional defense of Desuetude - that long unenforced laws may not be constitutionally enforced if individuals would otherwise have no reason to know they existed.
1973: The case of
Struck v. Secretary of Defense. The Supreme Court by a unanimous vote held that the military's discharge of a woman for refusing to seek an abortion was unconstitutional discrimination on the basis of sex, since men who were out of commission for similar periods of time because of bodily limitation (i.e., injury) were not discharged. Attorney Ruth Bader Ginsburg gained much prominence for this.
1974: The case of
Geduldig v. Aiello. The Supreme Court by a 7-2 vote held that denial of insurance benefits for work loss resulting from pregnancy was discrimination on the basis of sex. The majority held that it was impossible to draw a distinction between Geduldig's case and Struck's. Justices Burger and Rehnquist dissented.
1974: Justice
William O Douglas retires from the bench. President Jackson nominated
District Court Judge Frank M Johnson to replace Douglas. Johnson proved a moderate on the bench who would continue the cause of integration, but with a softer tone that emphasized an awareness of the myriad and unexpected issues that could arise when the Courts assume administrative roles. (
See this paper, for example). He would adhere to the Milliken v. Bradley principle, but proved a decisive vote in the cases involving the fate of black southern teachers who lost their jobs as school districts were consolidated.
Court Breakdown
2 Conservatives (Burger, Rehnquist)
5 Moderates (Stewart, White, Blackmun, Powell, Johnson)
2 Liberals (Brennan, Marshall)
1975: In
Bigelow v. Virginia, the Court held by a 7 to 2 vote that states cannot prohibit advertising of services legal in other states, even if illegal in the state in question. Nor could states criminalize their citizens for seeking such services in other states or punish their own citizens for aiding or abetting others. In this case, it was advertising about the availability of abortions in New York by a Virginia newspaper.
1976: In
Danforth v. Planned Parenthood, the Court struck down a state prohibition on the use of saline amnioscentesis as an abortion method due to it being the preferred method by doctors. The Court further struck down a spousal-consent requirement as inappropriately putting the right of decision in the hands of a person other than a woman or her doctor. Parental consent requirements were upheld, so long as the prospect of a judicial bypass in an emergency circumstance was available based upon longstanding principles of Courts acting 'in loco parentis.' The Court would later extend the spousal principal to spousal notification requirements, under the assumption that the only women who would not otherwise be informing their husbands would be those who would be afraid to.
1976: President Jackson defeats California Governor Ronald Reagan.
1977: In
Carey v. Population Services International, the Court announced a right to sell contraceptives to adult women and mature minors, even without a prescription, so long as it was by a licensed pharmacist. Pharmacists likewise had a right to advertise such services.
1977: The case of
Maher v. Roe. The Supreme Court held that public funding of natural childbirth but not nontherapeutic abortion was not an Equal Protection violation. However, the Court held that failing to fund therapeutic abortions was both an Equal Protection violation and an undue burden on the privacy interest. Failure to fund contraceptive access would likewise constitute a violation of Carey.
1977: The case of
Whalen v. Roe. The Court holds that
Doe v. Bolton applies to doctor-patient decisionmaking generally. The necessity of prescription drugs cannot be a determination vetoed by somebody other than a patient or their doctor. Exception to this principle would later be made in the circumstances where an individual was in the custody or guardianship of another (such as the comatose, minors, the committed, feeble-minded, senile, etc.). Whalen would later be extended as a general First and Fourth Amendment privacy right: that all formalized government obligations of people to submit information to the government are only allowed to the extent that they are for a legitimate public purpose, acquire no more information than necessary, is not publicized, and is kept within the agency which seeks the information and not shared with other agencies.
1979: The case of
Colautti v. Franklin. The Court holds by a 5 to 4 majority that procedural due process requires states to abide by the common law "quickening" privilege that women may not be made to testify against their doctors for abortions performed prior to the point of "quickening" (roughly 16 to 18 weeks). This amounted to making criminal review of abortion decisions all the more difficult in early and mid pregnancy.
1980: Vice President Jimmy Carter defeats George H.W. Bush.
1981: Potter Stewart retires, and is replaced by moderate liberal Georgia Judge Phyllis Kravitch. Carter would face criticism for his perceived Georgia favoritism, as many liberals had hoped for the nomination of Shirley Hufstedler of the Ninth Circuit.
Court Breakdown
2 Conservatives (Burger, Rehnquist)
4 Moderates (White, Blackmun, Powell, Johnson)
3 Liberals (Brennan, Marshall, Kravitch)
1983: The case of
Akron v. Akron Center for Reproductive Health. The Court holds that a 24-hour waiting period is unconstitutional.
1984: Jimmy Carter defeats Bob Dole for reelection.
1985: The case of
Bowers v. Hardwick. The Courts holds by a 6-3 vote that the right of privacy extends to consensual sexual conduct between consenting adults. The lawful authority of government - the police power - is premised upon the public interest. There is no public interest in what consenting adults do behind close doors - homosexual, heterosexual, or otherwise.
1985: Justice Thurgood Marshall retires. He is replaced by Judge A Leon Higginbotham.
Court Breakdown
2 Conservatives (Burger, Rehnquist)
4 Moderates (White, Blackmun, Powell, Johnson)
3 Liberals (Brennan, Kravitch, Higginbotham)
1986: The case of
Thornburgh v. American College of Obstetricians. The Court holds that state informed consent requirements which oblige a doctor to inform a woman of public benefits available to support her, paternity support, and observed emotional consequences of abortion procedures are constitutional even if the purpose is to strongly influence the decision, so long as the doctor is not prohibited from making any other statements to the patient that may run contrary to the public goal to persuade and the information presented is not 'patently false.'
1986: Justice William J Brennan retires. He is replaced by Judge Stephen Breyer.
Court Breakdown
2 Conservatives (Burger, Rehnquist)
4 Moderates (White, Blackmun, Powell, Johnson)
3 Liberals (Kravitch, Higginbotham, Breyer)
1987: Justice Byron White retires. He is replaced by Judge Jose Cabranes.
Court Breakdown
2 Conservatives (Burger, Rehnquist)
4 Moderates (Blackmun, Powell, Johnson, Cabranes)
3 Liberals (Kravitch, Higginbotham, Breyer)
1988: Jack Kemp elected President.
1989: Chief Justice Warren Burger retires. He is replaced by Senator Orrin Hatch.
2 Conservatives (Hatch, Rehnquist)
4 Moderates (Blackmun, Powell, Johnson, Cabranes)
3 Liberals (Kravitch, Higginbotham, Breyer)
1990: Justice Lewis Powell retires. He is replaced by Solicitor General Antonin Scalia.
3 Conservatives (Hatch, Rehnquist, Scalia)
3 Moderates (Blackmun, Johnson, Cabranes)
3 Liberals (Kravitch, Higginbotham, Breyer)
1991: The case of
Rust v. Sullivan. The Court holds that conditioning Medicare or Medicaid funds on a doctors not discussing the issue of abortion violates Doe v. Bolton and the First Amendment. The Court would later extend this principle to a general right of doctors to communicate true information with patients so long as their statements did not constitute malpractice, relying upon Doe and Justice Douglas's dissent in Poe v. Ullman.
1991: Justice Frank M Johnson retires. He is replaced by Texas Judge Edith Jones.
4 Conservatives (Hatch, Rehnquist, Scalia, Jones)
2 Moderates (Blackmun, Cabranes)
3 Liberals (Kravitch, Higginbotham, Breyer)
1993: Judge Leon Higginbotham announces his retirement on the basis of a certified disability. Kemp, faced with a majority Democratic Senate, nominates moderate Second Circuit Judge Amalya Kearse as a replacement.
4 Conservatives (Hatch, Rehnquist, Scalia, Jones)
3 Moderates (Blackmun, Cabranes, Kearse)
2 Liberals (Kravitch, Breyer)
1994: Justice Harry Blackmun retires. He is replaced by Douglas H Ginsburg, a Harvard Law Professor elevated to being Judge of the First Circuit nominated upon the vacancy created by Stephen Breyer. Viewed as a socially moderate choice on the basis of his wife being a practitioner of abortion procedures and his having been a clerk for Thurgood Marshall. Ginsburg would prove more libertarian than conservative on the bench. A controversy erupted when it was discovered Ginsburg had smoked marijuana with some of his students, but given the Carter administrative had decriminalized the substance in years prior, it was viewed as non-disqualifying. Ginsburg's libertarian streak resulted in his being considered in a class of his own.
4 Conservatives (Hatch, Rehnquist, Scalia, Jones)
1 Libertarian (Ginsburg)
2 Moderates (Cabranes, Kearse)
2 Liberals (Kravitch, Breyer)
Blackmun throughout his career remained a centrist in the mold of Lewis Powell or Potter Stewart, rather than drifting left over time. He would be proud, but less defensive, of his Doe opinion, but the abortion issue would not become a much a partisan fight over time as a great many Catholic culturally conservative Democrats remain in the party. Some issues - like Federalism and economic matters - he would remain more conservative on. Others - like environmentalism - were ones he had a liberal streak on from the beginning (Douglas, who loathed Blackmun initially, started to like him because they were the two dissenters in an environmental case), and issues of reproductive autonomy, privacy, and so forth would be ones where he would still be moderately liberal I assume. Without the defensiveness over Roe, he likely doesn't have an issue retiring under a GOP President.
The "Kemp Revolution" produced a Conservative Majority Court, but also one somewhat uninterested drastically reshaping American law as the Burger Court had done far less to begin with. Ironically, members of the Hatch Court - like Scalia and Ginsburg - would adopt fairly liberal positions in Criminal procedure cases and could (depending on the issue) be understood as to the left of Blackmun, Powell, White, or Breyer on such matters.
EDIT: I swapped Cornelia Kennedy for Frank Johnson, and Frank Johnson for Phyllis Kravitch.
EDIT 2: I swapped Clifford Wallace for Orrin Hatch.
Without the Reagan Administration, I doubt Clarence Thomas is ever made a Court of Appeals Judge, let alone a Supreme Court Judge. Thomas got on the HW Bush Administration's radar because of Thomas being at EEOC. Nor could Emilio Garza be elevated, since he was first made a District Court Judge in 1988. Amalya Kearse is thus the natural choice for the Conservative Kemp Administration to pick.
Breyer was well liked by the Carter Administration and Judiciary Committee, and I suppose Carter would elevate him just because of that. He'd need to mend ties with the liberal wing of the party like Ted Kennedy (for whom Breyer worked for).
