Today in Supreme Court History: January 22, 1890

1/22/1890: Hans v. State of Louisiana argued.

 

Comments

[JoeFromtheBronx]

Roe v. Wade and Doe v. Bolton were decided on this date in 1973. We also learned LBJ had died.

David Garrow's Liberty and Sexuality is one grand account of the road to and after (ending in the 1990s) the decisions. Many other people wrote about it, including Sarah Weddington, who argued "Roe." Her co-counsel, Linda Coffee, is still alive.

(I'm not aware of any of the other main participants being alive, though someone might be. Dorothy T. Beasley, who later became a state judge, argued for Georgia. She argued multiple cases in front of SCOTUS, including a death penalty case. She died in 2024.)

A whole lot can be said about these cases. I have done so over the years. Doe deserves more attention than it has sometimes received. It is overall a decent opinion.

Roe is more overstuffed. The main problem in my eyes is that the privacy section is so summary. OTOH, Douglas and Stewart have concurrences. Planned Parenthood v. Casey is better at providing some detail linking past cases to the immediate issue.

One complaint raised is that equal protection should have been used. Gender equality jurisprudence was in its infancy. And, even when it started to be more recognized later by SCOTUS, pregnancy discrimination was not deemed gender discrimination. Blackmun, the author of the opinions, joined those opinions.*

John Hart Ely, a liberal legal scholar (his writings about the war power are apt these days), famously wrote a strong criticism of Roe v. Wade. I read the article and found it lacking. YMMV.

Ely later strongly criticized the Hyde Amendment (funding) cases as a violation of equal protection. Ely also eventually supported upholding the opinion and sent a thank you note to the authors of the Casey plurality. This tends to be skipped over when he is selectively cited by the "even liberals ..." brigade.

Josh Blackman is quite glad the opinions were overruled. He doesn't even want to cite them. BTW, Hans left something to be desired. See, e.g., Souter's dissenting opinion in the Seminole Tribe case.

C-SPAN had a "Landmark Cases" segment on the case:

https://landmarkcases.c-span.org/Case/12/Roe-v.-Wade

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* Planned Parenthood v. Casey included a sex equality argument.

Sex equality was raised at the time and was a strong motivation in the push for abortion rights. Abele v. Markle (I), a lower court opinion noted:

The changed role of women in society and the changed attitudes toward them reflect the societal judgment that women can competently order their own lives and that they are the appropriate decisionmakers about matters affecting their fundamental concerns.