The Invisible Hand of Justice Stevens on Abortion

During the days following the death last Tuesday of Justice John Paul Stevens, admirers posted lists of their favorite and not-so-favorite Stevens opinions. Free speech on the internet? A great one. No First Amendment protection for burning an American flag? Not so great. Access to federal court for Guantánamo detainees? Definitely. Upholding an Indiana voter ID requirement? Hmm …

Items on these lists, posted on blogs and websites, ranged widely. Missing, however, were opinions dealing with abortion. That’s surprising, since Justice Stevens wrote opinions in many of the abortion cases that came before the court during his 35-year tenure.

True, nearly all his writing in abortion cases took the form of concurrences or dissents rather than majority opinions. Sometimes he spoke for himself alone, as when he argued that state laws incorporating the view that potential life must be protected from the moment of conception were fundamentally theological, thus amounting to an unconstitutional establishment of religion. “I believe our jurisdiction is limited to the evaluation of secular state interests,” he wrote in 1986.

That his voice was distinctive is only one reason to single out abortion for still another appraisal of the justice’s legacy. After all, he held distinctive positions on many issues. The deeper reason is that his approach to abortion cases, and the way that approach changed over the decades, exemplifies the kind of judge he was: attentive to facts, open to argument, impatient with intellectual shortcuts, persuaded that civility offered a more reliable route to success than invective. To trace his role in shaping the court’s abortion jurisprudence is to better understand the man and his role on the court overall.

For one thing, Justice Stevens was an active behind-the-scenes player on abortion cases that did not ultimately carry his name. I found this out a decade ago when I was invited to take part in an academic symposium on the justice’s career. Asked to pick a topic to focus on, I chose abortion, and in preparation dug into the revelatory trove of papers that Justice Harry Blackmun left to the American people. From the internal court memos, draft opinions and notes of private conversations in the Blackmun files at the Library of Congress, I was able to follow Justice Stevens’s emergence as a leading, if often invisible, strategist who helped keep the right to abortion alive in an increasingly hostile climate at the court.

He worked hard, for example, to increase Justice Sandra Day O’Connor’s comfort zone with abortion. She had written harshly about Roe v. Wade in the first abortion case she confronted after arriving at the court in 1981. Justice Blackmun, Roe’s author and fiercely protective of the 1973 precedent, mistrusted her, and their working relationship was strained.

In 1989, a case reached the court on the constitutionality of a Minnesota law requiring minors to notify both parents of their decision to have an abortion. The complex statute provided an alternative route to legal abortion for teenage girls — approval by a judge — with that “judicial bypass” provision to be activated only if the Supreme Court deemed the law unconstitutional without it.

Justice Stevens found the parental notice requirement unconstitutional and the bypass provision inadequate to save it. Justice O’Connor had never to that point voted to invalidate any abortion restriction. Assigned to write the majority opinion striking down the law, Justice Stevens worked closely with her to hold a majority during the seven months that elapsed between the argument in the case, Hodgson v. Minnesota, in November 1989 and the decision at the end of July 1990.

He didn’t quite succeed. Justice O’Connor wrote a separate opinion declaring that in a state like Minnesota, where only half the children lived with both biological parents, the two-parent notice requirement was so unreasonable as to be unconstitutional. But in her view, the option of going before a judge offered adequate relief. The law was saved.

Nonetheless, Justice O’Connor had taken an important step by declaring for the first time that an abortion restriction violated the Constitution. Just two years later, in Planned Parenthood v. Casey, hers was one of the five votes that preserved the right to abortion from what was until then its most serious challenge. Justice Stevens played an important role behind the scenes in framing the question to be decided and in acting as a go-between who had the confidence of both Justice Blackmun, who was distraught at the likelihood that the right to abortion was about to be lost, and the three Republican-appointed justices who unexpectedly proved willing to save it, Justice O’Connor along with Justices Anthony Kennedy and David Souter.

Justice Stevens himself had no particular affection for Roe v. Wade itself, telling his colleagues in a 1985 memo that he didn’t know how he would have voted had he been on the court in 1973. His votes in post-Roe cases early in his tenure alarmed Justice Blackmun. For instance, he voted in dissent to uphold a one-parent consent requirement for minors in a 1977 case from Missouri. In a trio of cases later that year, he voted to uphold state refusals to pay for abortions for poor women.

But his approach started to change as the trickle of new restrictions on abortion became a flood. He voted against parental consent in a 1979 Massachusetts case. A challenge to the Hyde Amendment, a congressional rider on an appropriations bill barring federal Medicaid payments for abortion, reached the court in 1980. Justice Stevens was in the minority that would have struck it down. In the justices’ private conference, according to Justice Blackmun’s notes, Justice Stevens called the measure “a perversion of the spending power” and declared: “We make federal policy by holding a revenue bill hostage — reprehensible!”

He became a trusted adviser to Justice Blackmun, for example persuading his senior colleague to omit from a 1986 decision a direct attack on the Reagan administration’s solicitor general. The administration had, to Justice Blackmun’s great annoyance, urged the court to overturn Roe v. Wade in a case from Pennsylvania in which the state itself had not presented that broad question.

In the index to “The Making of a Justice,” the 531-page memoir that Justice Stevens published this spring, there is no entry for “abortion.” While it’s safe to assume that he didn’t construct his own index, I still found the omission surprising. On reflection, though, the absence seems somehow true to the man.

He didn’t think in abstract categories. Cases were problems to be solved, not theories to be expounded upon. Most of the decisions I’ve referred to here are in his book, but not all of them. The memoir is organized chronologically rather than topically. To figure out what Justice Stevens thought about a particular issue, the reader has to find the cases, one at a time for 35 years. What led a troubled country to note in more than a passing way the death of a 99-year-old man was, I think, the realization that we’re not likely to see that kind of Supreme Court justice any time soon.

Leave a Reply