Supreme Court Almost Overturned Roe Decades Ago, But Justice Sandra Day O’Connor Flip-Flopped

How close did the Supreme Court come to reversing Roe v. Wade more than three decades before the June 2022 ruling in Dobbs v. Jackson Women’s Health Organization? The recent posthumous release of the Supreme Court papers of Justice Sandra Day O’Connor, who served on the bench from 1981 to 2006, reveals that it came very close indeed. A long article at CNN.com by legal analyst Joan Biskupic lays out the details of the internal drama at the court during O’Connor’s first decade as a justice.

The story begins with two promises made by candidate Ronald Reagan during his run for the White House against incumbent Jimmy Carter. Reagan had made clear his intention to appoint the first woman to the Supreme Court, as well as his support for the 1980 Republican platform on abortion. That platform committed the GOP to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” The language was not specific as to the reversal of Roe, but it was commonly understood as the foundation of a position that Roe, nearly universally criticized by legal scholars of the era, was erroneous as a matter of constitutional law.

In choosing O’Connor, there is little doubt that Reagan believed in the summer of 1981 that he was keeping both of these promises. But the response to his selection of the former Arizona senate majority leader and jurist was immediate — and not positive. Dr. Carolyn Gerster was at that time the president of National Right to Life Committee (and my boss at NRLC at the time I left to work in the Reagan White House correspondence shop). She was an Arizonan and had worked with O’Connor, knew her personally, and complimented her as “a gracious and a gifted lady.” Nonetheless, Gerster argued publicly and in communications with anyone who would listen that O’Connor had opposed pro-life legislation in Arizona and was an unacceptable risk to carry on that position as a member of the high court.

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Reagan was persuaded otherwise and bristled at the suggestion O’Connor would act to preserve Roe. He reportedly made an entry in his diary the day before she was announced publicly, “Called Judge O’Connor and told her she was my nominee for supreme court. Already the flak is starting and from my own supporters. Right to Life people say she is pro abortion. She declares abortion is personally repugnant to her. I think she’ll make a good justice.” It was and is true that a judge’s position on a legislative policy matter may have little to do with his or her stance on the role of the judiciary — that is an axiom of judicial restraint. Gerster proved to be correct in her assessment of O’Connor, but there is little reason to doubt that Reagan believed she was repulsed, as he was, by abortion and would handle the issue as he had come to see it.

Little time passed before the question was tested. In the 1970s and 1980s, the court, far from seeing Roe as settling the law, buzzed with abortion cases. At issue were the Hyde Amendment, state and municipal regulations of abortion, parental rights and spousal rights, limits on funding for Planned Parenthood under the federal Title X program, and more besides. The 7-2 majority for Roe and its companion case, Doe v. Bolton, was evolving in a different direction under Reagan, but how rapidly it would swing as Congress and the states continued to test the ruling’s limits remained to be seen.

Resistance to O’Connor was ultimately overcome, and she was unanimously approved for the Supreme Court in September 1981. The first case to come before the court involved a review of the constitutionality of a regulatory and informed consent statute enacted by the City of Akron. The high court handed abortion advocates a sweeping 6-3 victory on June 15, 1983, in an opinion written by Justice Lewis Powell, a member of the Roe majority. The court struck down a 24-hour waiting period before an abortion could be carried out, a requirement that second-trimester abortions be carried out in hospitals, a parental or guardian consent provision, and even a requirement that women be informed about the stage of fetal development and the availability of alternatives to abortion.

Justice O’Connor wrote the dissent in Akron, arguing that the court should apply a less stringent constitutional test as to whether a provision imposed an “undue burden” on a woman’s decision to have an abortion. Under that test, O’Connor would have upheld the Akron ordinance. She likewise wrote, in a frequently quoted dictum: “The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.” She asserted these determinations were legislative in nature and that the court had no business setting itself up as a “science review board.”

While the dissent made no mention of or commitment to reversal of Roe, its line of argument was promising. The battle over the court subsided for a time as Reagan nominated Antonin Scalia to the opening created by the retirement of Warren Burger in 1986. But the harmony was short-lived. The explosive and shameful treatment of Robert Bork, nominated by Reagan to replace Powell in July 1987, embittered almost every court battle going forward. After the U.S. Senate, led by Democrats Ted Kennedy and Joe Biden, rejected Bork 58-42 that October, a labyrinthine process to fill the vacancy led first to Douglas Ginsburg, who was rejected over an incident of past marijuana use, and finally came to rest on federal appeals court judge Anthony Kennedy, who, like O’Connor, won unanimous Senate confirmation.

In short order after Reagan left the White House, the court dealt with a new case where, the O’Connor papers reveal, the tension regarding her views on Roe came to a head. At least one conservative leader in subsequent years was inclined to believe that O’Connor’s view had not shifted over time to favor preserving Roe, but that she was attentive not to undermine Reagan during his time in office. Be that as it may, the case of Webster v. Reproductive Health Services involved another set of regulatory provisions, this time from Missouri, including a ban on the use of public facilities to carry out abortions and a requirement that physicians perform diagnostics to determine if an unborn child was viable and therefore protectable under extant law. Pro-life scholars joined the new Bush administration in urging the court not only to uphold the provisions but to reverse Roe.

As the court met in conference, with William Rehnquist now chief after the retirement of Warren Burger, there appeared to be a 5-4 majority to reverse the 1973 rulings. O’Connor’s own notes reveal that she thought those rulings to be “fundamentally wrong.” But as the writing of the majority opinion evolved and the court majority — Rehnquist, Kennedy, Scalia, White, and O’Connor — split its ruling into three separate opinions upholding the Missouri law, O’Connor made plain that she was willing to go no further to narrow or reverse Roe. Her concurring opinion concluded, in line with her Akron dissent, that the standard in abortion cases should be the less stringent test of whether a law imposed an “undue burden” on the woman seeking the procedure.

As the court deliberated, she wrote to Rehnquist regarding his proposed opinion, “Your draft goes on to reexamine the Roe framework and to reject the trimester framework. It also rejects the point of viability as constitutionally relevant. Those two holdings effectively overrule Roe despite the disclaimer.” O’Connor went on, “I have previously indicated that I would reject the trimester framework, and would recognize the State’s interest in potential life at all stages of the pregnancy.” Then she added, “I see no necessity to go further than that in this case and hold that the point of viability has no relevance at all.”

Scalia’s response to O’Connor’s parsing of the court’s role was pungent and plain, “Until that error is corrected — until we make clear that it is not our job generally to decree what is ‘sensible’ — the public perception of this Court as an institution will continue to be grotesquely distorted as we have seen in the past year.” Scalia urged his colleagues to “muster sufficient resolve to overrule [Roe], rather than heap error upon error with Roe II.”

The O’Connor papers underscore how her gambit to preserve Roe was seen by Scalia in particular as undercutting a result that was both legally correct and aligned with restoring public understanding of the court as a non-political body. Biskupic suggests that Scalia’s argument was a form of bullying, and she contrasts it with the pro-Roe Justice Stevens’s more “subtle” influence on O’Connor. Reading the back-and-forth among the justices without that filter offers a simpler view: Gerster was accurate in her reading of O’Connor and Scalia was, as was his wont, a possessor of judicial clarity disinclined to preserve a “fundamentally wrong” ruling that brought the court into decades of disrepute over an issue it was unsuited to resolve.

Reinforcing this view is the dynamic the O’Connor papers reveal with Justice Kennedy. In Webster, he expressed himself as fully ready to reverse Roe. He signed the three-justice majority opinion and said in a conference memo to Rehnquist, “I am in substantial agreement with your excellent opinion in this case. As you know, in my view the case does provide a fair opportunity to assess the continuing validity of Roe v. Wade, and I would have used the occasion to overrule that case and return this difficult issue to the political systems of the states.” Three years later, of course, Kennedy joined O’Connor and wrote the infamous decision in Planned Parenthood v. Casey, where the court formally affirmed the “undue burden” test as an endorsement of a weaker form of Roe. He also offered history the memorable line: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

In the 30 years after the Casey ruling, the status of legal abortion in the United States (among the most permissive 10 nations on the planet), has led to the loss of millions of human lives — the magnitude of which indeed remains a mystery to us who are left behind. One final point worth noting. Ronald Reagan’s legacy as a pro-life president is often challenged based on his twin mistakes with O’Connor and Kennedy. The O’Connor papers show how close the reversal of Roe came in 1989 and how reasonable observers could have believed these two pro-Roe justices recognized the artificiality and error of Roe. In an op-ed that appeared in The New York Times 20 years ago, Reagan’s perhaps closest friend and former Cabinet member Judge William P. Clark wrote of the 40th president, “One of the things he regretted most at the completion of his presidency in 1989, he told me, was that politics and circumstances had prevented him from making more progress in restoring protection for human life.”

As the legal Left seeks to promote a new round of judicial activism, we can hope that those efforts will prove to be in vain. America is better than that and should continue to stand for what Reagan described as “the right without which no other rights have any meaning.”

LifeNews Note: Chuck Donovan is a 50-year veteran of the national debate over the right to life and served from 1981-89 as a writer in the Reagan White House.He is the former Executive Vice President of Family Research Council.