Thus, on April 24, 1992, it appeared to the Justices that Roe v. Stevens called the latter 'an insult' to women.Īfter the conference, it looked as if there was a 5-4 opinion to uphold the statute in its entirety, which would have effectively gutted Roe. Stevens and Blackmun wanted to strike down both the spousal notification provision and the 24 hour waiting period. O'Connor agreed- she thought the 3rd circuit decision, which had struck down only this provision, was basically right. Souter wanted to strike down the spousal notification provision. The remaining four Justices thought that some parts of the Pennsylvania statute had constitutional problems. Kennedy, and not Rehnquist specifically wanted to overrule the two previous cases, Akron and Thornburgh, which had reaffirmed that abortion was a fundamental right and had subjected abortion regulations to strict scrutiny. Thomas also wanted to uphold the entire statute. Scalia agreed with Rehnquist, but he added that in his view abortion regulations need only pass a test of minimum rationality, a position Rehnquist had taken in his Webster opinion. It's possible that Rehnquist was just playing possum, arguing that the Court did not need to do much new here, so that he could cement a majority that included Sandra Day O'Connor and try to write an opinion that could command a Court. Edward Lazarus' book Closed Chambers suggests that Rehnquist said the opposite of what Blackmun's notes suggest- the Akron and Thornburgh had to go, but that it might not be necessary to overrule Roe. This statement seems puzzling- it's hard to see how these cases would be consistent with upholding the Pennsylvania statute. Blackmun's notes state 'To uphold we would not OR Akron & Thornburgh ' i.e., that it would not be necessary to overrule these cases from the 1980's in which a liberal majority had struck down similar abortion regulations under a test of strict scrutiny. At the conference following the argument, on April 24, 1992, there were five votes to uphold the challenged Pennsylvania statute in its entirety: Rehnquist, White, Scalia, Kennedy, and Thomas. Here is the story of what happened as best I can reconstruct it:Ĭasey was argued on April 22, 1992. The story has been told before by Edward Lazarus in his book Closed Chambers, and by David Garrow in a New York Times article on Justice Souter in 1994, but Blackmun's papers offer a valuable additional insights. Casey, as you may remember, was thought to be the case that would have overruled Roe but ended up reaffirming it in a watered-down version. Harry Blackmun's papers offer important behind-the-scenes details about how the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. University of Chicago Law School Faculty Blog Rothman's Roadmap to the Right of Publicity Reporters Committee For Freedom of the Press International Economic Law and Policy Blog The Anti-Torture Memos (arranged by topic)įrom the Blackmun Papers: The Day Roe v. The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC Sabeel Rahmansabeel.rahman at Ĭompendium of posts on Hobby Lobby and related cases

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