Why John Roberts cited the private papers of the justice who wrote Roe v. Wade

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By Joan Biskupic, CNN legal analyst & Supreme Court biographer

During Wednesday’s historic oral arguments on abortion rights, Chief Justice John Roberts pulled back the curtain on internal Supreme Court negotiations and referred to the papers of the late Justice Harry Blackmun, the author of Roe v. Wade.

Roberts usually scorns any courtroom references to materials beyond the briefs and record of a case, let alone to private debate among justices. But he wanted support for his position that a key part of the 1973 landmark decision that gave women a right to abortion at the early stages of pregnancy could be scrapped without disturbing Roe’s central holding.

Justices loathe public scrutiny of their behind-the-scenes negotiations on cases, and some disapprove of colleagues’ arranging for their once-private papers to be turned over to public libraries when they die. Roberts called the Blackmun files, opened in 2004 at the Library of Congress, “an unfortunate source.” (The court has delayed release of Justice John Paul Stevens’ papers, in conflict with a bequest he made to the Library of Congress before his 2019 death.)

So it was jarring Wednesday when Roberts referred to the Blackmun papers as he sought to bolster his assertion that a crucial section of Roe v. Wade tied to fetal viability could be discarded without undercutting Roe.

In that case, the justices by a 7-2 vote declared women have a constitutional right to end a pregnancy before viability, that is, when a fetus can survive outside the womb, which today occurs at about 23 weeks.

Roberts suggested the fetal viability line was arbitrary and need not be considered part of Roe’s essential holding. He appeared ready to uphold the Mississippi ban on abortion after 15 weeks. Mississippi abortion providers, backed by the Biden administration, have challenged the law as unconstitutional.

“If I remember correctly, and it’s an unfortunate source, but it’s there in his papers, Blackmun said that the viability line was … actually was dicta. And presumably he had some insight on the question,” Roberts said as he questioned Mississippi Solicitor General Scott Stewart. (“Dicta” refers to statements in a ruling that are not necessary to resolution of the case.)

Roberts’ brief comments failed to fully capture Blackmun’s correspondence with his colleagues and his ultimate decision.

As justices mulled constitutional protection for abortion nearly a half century ago, Blackmun indeed expressed some ambivalence regarding the point at which a state’s interest in fetal life could overtake the woman’s right to end a pregnancy, according to an earlier CNN review of several justices’ files on Roe v. Wade. Blackmun initially considered the end of the first trimester, at about 12 weeks. But he became persuaded of the importance of a fetal-viability line because, as he wrote in one memo to colleagues, it “has logical and biological justifications.”

“There is a practical aspect, too,” Blackmun wrote, “for I am sure that there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.”

In his final opinion for the seven-justice majority, Blackmun wrote: “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb.”

In Wednesday’s hearing, Roberts returned to the work of Blackmun as he was then questioning Julie Rikelman, who represented the Jackson Women’s Health Organization, challenging the 15-week ban. He insisted Blackmun shunned a hard line at fetal viability, and Roberts, again, disparaged the public availability of his papers.

” … (I)t’s like what Justice Blackmun said in, when discussing among his colleagues — which is a good reason not to have papers out 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.”

The Supreme Court’s 1992 decision in Planned Parenthood v. Casey reaffirmed Roe and the right of a woman to end a pregnancy before fetal viability.

Blackmun was still serving, as the justices asserted in their ruling: “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”

Roberts’ comments tied to the once-private papers of a deceased justice were also conspicuous in the context of Justice Stevens’ archive.

CNN recently reported on the details of Stevens’ arrangement with the Library, in which he intended internal documents related to his cases through 2005 to be “freely available” at the LOC by October 2020. Supreme Court officials have attributed the delay in releasing materials to the Library to the Covid-19 pandemic.

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