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- Path: sparky!uunet!gatech!taco!csl36h.csl.ncsu.edu!dsholtsi
- From: dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger)
- Subject: Blackmun calls the Roe v. Wade dividing line "arbitrary"
- Message-ID: <1992Dec24.014033.13747@ncsu.edu>
- Sender: news@ncsu.edu (USENET News System)
- Reply-To: dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger)
- Organization: North Carolina State University
- Date: Thu, 24 Dec 1992 01:40:33 GMT
- Lines: 70
-
- Here's a portion of a fascinating article on the makings
- of the Supreme Court decision, Roe v. Wade. The article
- reveals that Justice Blackmun, who is the principle
- architect behind Roe, wrote in a private memo that any
- dividing line is ``equally arbitrary''. Justice Stewart,
- who joined Blackmun in the majority opinion, criticized
- parts of the decision as being ``legislative''.
-
- ---
- From: The Washington Post, Jan. 22 1989, "The Abortion Papers",
- by Bob Woodward
-
- "Ever since the Supreme Court issued its controversial
- abortion decision, Roe v. Wade, 16 years ago today,
- many legal scholars and millions of other critics
- have cried foul. They have argued that the court was
- legislating social policy and exceeding its authority
- as the interpreter, not the maker, of law.
-
- New evidence has now surfaced that some of the justices
- who wrote and supported the opinion were doing precisely
- that, in at least part of the decision. The opinion's
- author, Justice Harry A. Blackmun, said in one internal
- court memo that he was drawing ``arbitrary'' lines
- about the times during pregnancy when a woman could
- legally receive an abortion. In another memo, Justice
- Potter Stuart, who joined the Blackmun opinion, said
- the determination in the opinion about these lines
- was ``legislative''.
-
- [...]
-
- Blackmun said in his memo to the other justices that he
- had determined to set the cutoff at the first trimester,
- or first 13 weeks of pregnancy. ``This is arbitrary,''
- he said, starkly acknowledging his problem. ``But perhaps
- any other selected point, such as quickening or viability
- (of the fetus), is equally arbitrary.''
-
- [...]
-
- Justice Stewart, one of the six members of the court to
- join Blackmun's majority opinion, discussed this issue
- in a Dec. 14, 1972 internal memo. He told Blackmun and
- the other justices that he believed that the first-trimester
- demarcation line amounted to dictum. [DH -- "dictum" is
- a legal term for explanatory language not essential to
- the ruling.]
-
- ``One of my concerns with your opinions as presently
- written,'' Stewart said, ``is the specificity of its
- dictum--particularly in its fixing of the end of the
- first trimester as the critical point for valid state
- action. I appreciate the inevitability and indeed
- wisdom of dicta in the Court's opinion, but I wonder
- about the desirability of the dicta being quite so
- inflexibly `legislative.' ''
-
- [...]
-
- The ``legislative'' issue is important because it goes
- to the heart of the court's authority and legitimacy.
- The Constitution confers the federal legislative power
- exclusively to the Congress, so any discussion, even
- in internal memos, about the justices' ``legislative''
- purposes takes the court into perilous ground."
-
-
- Doug Holtsinger
-
-