DALLAS (BP)–Supreme Court Justice John Paul Stevens retired last month. He arrived at the Court in December 1975, the first justice to be appointed after the Roe vs. Wade decision made abortion legal nationwide.
It’s hard to imagine confirmation hearings in which abortion isn’t even a factor, but Justice Stevens wasn’t questioned about it. Journalist Linda Greenhouse, who covered the Supreme Court for The New York Times for three decades, points out that, in 1985, Justice Stevens observed to his colleagues that he didn’t know how he himself would have voted in 1973 when the court handed down Roe.
Greenhouse, now at Yale Law School, wrote a fascinating paper on “the path Justice Stevens travelled to a position in favor of preserving the right to abortion” and how he became what she describes as “a major contributor to the contours of the rights to abortion that exists today.” She concludes that Justice Stevens was indispensible as the “strategist” who served to preserve that right at what she calls “its moment of greatest need.”
That moment arose in Planned Parenthood vs. Casey, a case decided in 1992 that pro-abortion political and legal experts considered a direct confrontation to Roe. If reasoned and written as they feared, the decision would have resulted in Roe being overturned. By that time, Justice Clarence Thomas, who supported overturning Roe, had replaced Justice Thurgood Marshall, a reliable vote for legalized abortion. In Casey, a requirement that women seeking abortion notify their spouses was struck down. But 24-hour waiting period and informed consent requirements were upheld.
The decision’s wording meant everything and that’s where Justice Stevens’ intervention was key. He shuttled between three justices — Anthony Kennedy, Sandra Day O’Connor and David Souter — as well as Harry Blackmun, the justice who had written the ruling in Roe vs. Wade, to come up with a majority opinion that preserved the essence of Roe and a fundamental right to abortion.
Justice Stevens did not begin his tenure on the court with an inclination toward preserving Roe v. Wade. In his first abortion-related case in 1976 he departed from the pro-abortion majority and voted to uphold a requirement for parental consent for minors getting abortions. Justice Blackmun expressed his disappointment in the newest justice. Then three cases surfaced regarding taxpayer funding for abortion. In all three, Justice Stevens voted that the constitution did not require such funding. But notes on the justices’ discussions reveal that Stevens expressed strong concern about diluting a right to abortion.
In subsequent cases, Justice Blackmun’s influence was instrumental in the evolution of Justice Steven’s reasoning on abortion. The two formed a strong alliance in protecting Roe. Stevens, in turn, had a powerful influence on President Reagan’s 1981 appointee, Justice O’Connor, whose early opinions sided with the conservative bloc, but who became, famously, a swing vote.
Justice Stevens is about to be replaced. The next justice could be just as persuasive.
Penna Dexter is a conservative activist and frequent panelist on the “Point of View” syndicated radio program. Her weekly commentaries air on the Bott and Moody Radio Networks.