The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recently, James Robenalt wrote in the Washington Post about the drafting of Justice Blackmun's Roe decision. Initially, Blackmun did not draw the line at viability. His draft opinion observed that the Court could not, "at this point in the development of man's knowledge," specify "when life begins." Indeed, none of the parties in Roe argued that viability was the correct standard. Rather, this suggestion came from Larry Hammond, who was Justice Powell's law clerk.
In it, Hammond argued that the Supreme Court should not be in the line-drawing business, but if it did find it necessary to do so, viability seemed the most rational point where common agreement on the court could be mustered. Based on a newly decided lower-court case out of Connecticut, Hammond reasoned that the state's interest in protecting potential fetal life "becomes more dominant when the fetus is capable of independent existence (or becomes 'viable')."
And Hammond's memo ultimately prevailed on Justice Blackmun:
Nonetheless, Powell, through private correspondence, persuaded Blackmun to go along with viability. When the Roe v. Wade ruling was handed down in January 1973, it contained a trimester analysis that disallowed state abortion bans prior to viability.
Fast-forward to arguments in Dobbs. Chief Justice Roberts referenced, of all things, Justice Blackmun's papers. And he used those papers to suggest that the viability line in Roe was actually dicta! Go figure. One of my first articles was on the distinction between holding and dicta.
Roberts asked SG Stewart if viability was "an issue" in Roe. Roberts observed that "it wasn't briefed or argued." Then, he turned to the papers:
CHIEF JUSTICE ROBERTS: In fact, if I remember correctly, and I --it's an unfortunate source, but it's there --in his papers, Justice Blackmun said that the viability line was -actually was dicta. And, presumably, he had some insight on the question.
Definitely, an "unfortunate source."
Roberts returned to this theme during his discussion with Julie Rikelman:
CHIEF JUSTICE ROBERTS: And the regulations in Casey had -had no applicability or not depending upon where viability was. They applied throughout the whole range, period. So, if [Casey] didn't say anything about viability, it's like what Justice Blackmun said in --when discussing among his colleagues, which is a good reason not to have papers out that --that early, is that they don't have to address the line-drawing at all in Roe, and they didn't have to address the line-drawing at all in Casey.
Yikes. Not only did Roberts cite the Blackmun papers, he kvetched that the Justices should not release their papers "that early." Huh? Blackmun died two decades ago. Would Roberts still want Blackmun's papers from 1973 to be sealed? Did Souter get it right? Roberts also may be addressing the still-unknown release schedules for papers from Justices Stevens and Ginsburg.