The Nine [26]
There was, in short, very little of the informal contact of normal office life, just a few phone calls and even fewer visits to one another’s chambers. Some justices had substantive discussions with individual colleagues as rarely as once or twice a year. So Souter’s walk down the hall to visit O’Connor had more significance than it would have in another law office. It was meaningful, too, that Souter went to see O’Connor, not the other way around. All of the justices, not just Souter, went to O’Connor. The way to win a majority in the Rehnquist Court was to earn O’Connor’s support, so her colleagues invariably came to her as supplicants.
In his second year on the Court, Souter sought nothing less than to undermine the central tenet of the conservative revolution which his appointment was supposed to advance. Souter was appointed to overturn Roe v. Wade; instead, he was going to try to save it.
In his gentle manner, Souter told O’Connor he was uncomfortable with the chief’s approach in Casey. Couldn’t they find a way to preserve the core of Roe while upholding most of the specific provisions of the Pennsylvania law at issue? Indeed, Souter said, O’Connor’s own opinions pointed the way.
O’Connor’s views on the right to abortion grew out of the original decision in Roe. There, in 1973, Blackmun had written that the “fundamental” right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” but the right to abortion was not absolute. Where a state could show that there was a “compelling state interest” in limiting the right to choose abortion, the Court would approve the restriction. To discern the state’s interest in regulating abortion, Blackmun devised a framework that relied on pregnancy’s trimester calendar. The justice canvassed the medical literature and determined that in the first trimester the prospect of carrying a pregnancy through to childbirth was clearly more risky for a woman than an early-term abortion. Thus, he wrote, the state could not restrict abortion during this period, and the decision “must be left to the medical judgment of the pregnant woman’s attending physician.” (Much of the opinion in Roe was expressed in terms of the rights of the physician, rather than those of the woman; as a former general counsel for the Mayo Clinic, in Minnesota, Blackmun had a high regard for the medical profession.)
But as the pregnancy continued, Blackmun wrote, laws could reflect the government’s interest in protecting the fetus, not just the woman’s rights. After the first trimester, the state could regulate abortions, but only in “ways that are reasonably related to maternal health.” Finally, “subsequent to viability,” the state could restrict or even ban abortion, except when it is necessary “for the preservation of the life or health of the mother.” In essence, Roe introduced a sliding scale on which a woman’s right to abortion was greatest early in her pregnancy and could be limited as the fetus grew. Even so, Blackmun insisted, any law restricting abortion, even late in a pregnancy, would have to ensure protection of not only a woman’s life but also her health. Blackmun elaborated on this point in his lesser-known but still important opinion in Doe v. Bolton, a challenge to Georgia’s abortion law, which was decided by the Court on the same day as Roe. Again expressing the right to abortion as a doctor’s choice, Blackmun wrote that the decision to perform the procedure “may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant