The Nine [27]
O’Connor took an independent tack on abortion from the beginning of her tenure on the Court. In her first important case on the subject, in 1983, the majority struck down a set of rules in Akron, Ohio, that were clearly designed to discourage women from having abortions, including a regulation requiring that all abortions occurring after the first trimester take place in hospitals and another calling for a twenty-four-hour waiting period for women seeking abortions. O’Connor wrote a dissenting opinion, in which she defended the regulations and attacked part of Blackmun’s logic in Roev. Wade. Improvements in medical technology, O’Connor declared, would render the trimester analysis obsolete. Increasing numbers of premature infants would be able to survive birth at ever-earlier stages of pregnancy, she argued, and women would be able to have safer abortions later in pregnancy. “The Roe framework, then, is clearly on a collision course with itself,” she continued, in what became her most famous sentence as a justice. “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.”
O’Connor proposed a new legal framework to replace Roe. Adopting a phrase contained in a brief filed in the case by President Reagan’s Justice Department, she wrote that abortion regulations should be upheld unless they created an “undue burden” on a woman seeking to have the procedure. O’Connor didn’t define exactly what she meant by an “undue burden,” but she argued that, according to such a standard, the Akron restrictions should be upheld. In fact, when it came to medical science, Blackmun turned out to be more prescient than O’Connor. She was wrong to conclude that the point of viability would shift in any meaningful way. In Roe, Blackmun had written, “Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Early in the twenty-first century, more than three decades after Roe, it is still rare for a fetus younger than twenty-three or twenty-four weeks to survive. (The term of a normal pregnancy is thirty-eight to forty weeks.)
As usual when it came to controversial issues, O’Connor’s preference was for the matter to be settled in the political arena rather than in the courts. As a former state legislator herself, she always had a predisposition to favor the judgments of these officials. Quoting an opinion by Justice Oliver Wendell Holmes Jr. from 1904, O’Connor wrote, “In determining whether the State imposes an ‘undue burden,’ we must keep in mind that, when we are concerned with extremely sensitive issues, such as the one involved here, ‘the appropriate forum for their resolution in a democracy is the legislature.’ ”
But through her first decade on the Court, even as O’Connor criticized Roe, she never called for its outright rejection. In 1989, the Court came close to overturning Roe when it approved a Missouri law prohibiting most abortions in public hospitals. In Websterv. Reproductive Health Services, Rehnquist, joined by White, Scalia, and (for the most part) Kennedy, all but called for the end of Roe. But O’Connor, characteristically, held back, writing, “When the constitutional invalidity of a State’s abortion statute actually turns upon the constitutional validity of Roe, there will be time enough to reexamine Roe, and to do so carefully.”
This, then, was the state of O’Connor’s thinking when Souter paid her his visit. Opposed to Blackmun’s reasoning in Roe. Supportive of efforts by state legislators to limit abortion. Cautious—as always—about getting out of step with public opinion. But “time enough” had passed. She had to take a stand on