The Brethren (45 page)

"He won't leave Harry on this," Brennan's clerk reported to Marshall's clerk.

The clerks were shocked that such considerations would keep a man in prison. They wondered whether Brennan still would have refused to switch if the death penalty had not been struck.

Marshall's clerk asked his boss to talk to Brennan. Marshall refused. It was
not his style. He resented pres
sure from the Chief and he was not about to imitate his methods.

Marshall's clerk made a final appeal through Brennan's clerks.

Brennan had his priorities. His priority in this case was Harry Blackmun. There would be no new trial for "Slick" Moore.

1972 Term

Earl Warren and Warren E. Burger.

An informal photo of the Burger Court in 1977. Left to right: John Paul Stevens, Lewis F. Powell, Jr., Harry A. Blackmun, William H. Rehnquist, Thurgood Marshall, William J. Brennan, Jr., Warren E. Burger, Potter Stewart, Byron R. White.

Harry A. Blackmun in chambers.

y o

William H. Rehnquist in chambers.

Thurgood Marshall with his clerks in chambers.

The Burger Court, 1976. Left to right, front row: Byron R. White, William J. Brennan, Jr., Warren E. Burger, Potter Stewart, Thurgood Marshall: second row: William H. Rehnquist, Harry A. Blackmun, Lewis F. Powell, John Paul Stevens.

Harry Blackmun returned
to Rochester, Minnesota, for the summer of
1972
and immersed himself in research at the huge Mayo Clinic medical library. Rochester and the clinic were home to Blackmun, a safe harbor after a stormy term. He worked in a corner of the assistant librarian's office for two weeks without saying a word to anyone on the Mayo staff about the nature of his inquiry.

In his summer office in a Rochester high-rise, Blackmun began to organize the research that would bolster his abortion opinion. He talked by phone nearly every day with one of his clerks who had agreed to stay in Washington for the summer.

Blackmun pondered the relevance of the Hippocratic oath, which prohibits doctors from performing abortions. He also wanted to understand the positions of the medical organizations and to learn more about the advances in sustaining the life of a fetus outside the womb.

One by one, new elements found their way into his draft. His clerk worked each change into the text back in Washington. The language remained Blackmun's; the more rigorous analysis was the work of the clerk. For the first time, the right to privacy emerged explicitly. It was not absolute. It was limited by the state's interest in protecting the pregnant woman's health and the potential life of the fetus.

As they developed their analytic basis, Blackmun and his clerk tried to answer the crucial question: when did the state's interest in protecting the life of the fetus become overriding and outweigh the woman's right to privacy? Clearly there was such a point. The state's interest increased with time. But no definite answer could be derived from the Constitution.

Blackmun turned to medicine. Doctors often divided
pregnancies into three equal stages, or trimesters, each of roughly three months. Abortions were generally safe in the first trimester and, under proper medical conditions, could be performed safely in the second. It was at about this time, at the end of the second trimester, that the fetus became
viable,
or capable of living outside the womb. That was at about twenty-four to twenty-eight weeks, six months for all practical purposes. Therefore, the two medical interests—protecting both the health of the mother and the potential life of the fetus—seemed to converge and become overriding at about this six-month point. Abortions during the first two trimesters could and should be permitted. The draft gradually emerged as a strong, liberal prescription. It would prohibit states from interfering until the third trimester.

The clerk who was working on the opinion began to worry that one of the other clerks, strongly opposed to abortions, might try to change their boss's mind. He took no chances. Each night he carefully locked up the work he had been doing for Blackmun. At the end of the summer, he carefully sealed the latest draft in an envelope, put his initials across the tape, and had it locked in Blackmun's desk. Only Blackmun's personal secretary knew where it was.

Powell also made abortion his summer research project As a young lawyer in Richmond in the
1930s,
Powell had heard tales of girls who would "go away" to Switzerland and New York, where safe abortions were available. If someone were w
illin
g to pay for it, it was possible to have an abortion.

Powell understood how doctors viewed abortion. His father-in-law had been a leading obstetrician in Richmond, and his two brothers-in-law were obstetricians. Powell had heard all the honifying stories of unsanitary butchers and coat-hanger abortions.

Nevertheless, Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Powell felt he would just have to vote his "gut." He had been critical of Justices for doing exactly that; but in abortion, there seemed no choice.

When he returned to Washington, he took one of his law clerks to lunch at the Monocle Restaurant on Capitol Hill. The abortion laws, Powell confided, were "atrocious." His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote.

In a recent lower court case, a federal judge had struck down the Connecticut abortion law.* This opinion impressed Powell. The judge had said that moral positions on abortion about which each side was so sure "must remain a personal judgment, one that [people] may follow in their personal lives and seek to persuade others to follow, but a judgment they may not impose upon others by force of law." That was all the rationale Powell needed.

Brennan and Douglas worried that votes might have shifted since the previous spring. Blackmun remained a question mark, Stewart might defect, and they were not sure what Powell would do.

At conference on October
12,
Blackmun made a long, eloquent and strongly emotional case for striking down the laws. Stewart too seemed ready to join. But the big surprise was Powell. He made it
6
to
3.

Immediately after conference, Douglas called Blackmun to tell him that his presentation had been the finest, he had heard at conference in more than thirty years. He hoped the call would sustain Blackmun for the duration.