Chapter 7 Chapter 4 Encountering the "Roy Case"

"We shall now be in the field of abortion," Blackmun wrote in January 1971, before the Supreme Court heard the first abortion case.From his words, we can read a little expectation and a little helplessness. In fact, the mood of other justices of the Supreme Court is also the same.They have found that, in state legislatures, and in state and federal courts, the debate about whether abortion should be criminalized is raging, and it is time to settle the issue by the end of the century. In the United States, the four states of New York, Washington, Alaska, and Hawaii no longer jail practitioners who perform abortions.Another 13 states have passed "improvement" laws that expand the conditions under which abortion is permitted.But 33 states still ban abortion, and there are no signs of any reform in sight.As a result, abortion supporters turned to the courts, trying to send the issue to the Supreme Court.At this time, Jane Hodgson, a well-known obstetrician at the Mayo Clinic in St. Paul, was also appealing to the Supreme Court in her own name.She was indicted by local prosecutors in Minnesota for performing an abortion on a woman who had recently become pregnant and contracted German measles, a serious disease that can cause birth defects in fetuses.In an article published in the Mayo Clinic Journal, Hodgson argued that she acted solely in the best interests of her patients, predicting that "the day will come when abortion will become a humane medical service rather than a A crime."

As much as they wanted to try, neither Blackmun nor the other justices knew whether the Supreme Court would be able to resolve this increasingly bitter dispute.By this time, several abortion cases had reached the Supreme Court, awaiting consideration by the justices: Dr. Hodgson's appeal from Minnesota, Roe v. Wade from Texas, Georgia's Doe v. Bolton" (Doe v.Bdton), and "United States v. Vuitch".The final case comes from the District of Columbia, where the justices will sit in January.The case contains some technical jurisdictional disputes that appear to be a case designed to prevent the Supreme Court from touching such issues.In fact, when Roe v. Wade reached the Supreme Court last October, the justices had intended to hear the case after Younger v. Harris. The issue involved in the "Younger case" is whether the federal court can intervene in the criminal proceedings in the state court. Since the case was accepted in 1968, it has gone through two deliberations and has been pending.The Supreme Court finally decided to hear the "Vuqi case" first. On the Supreme Court, no justice has heard abortion cases, and Blackmun has never formally expressed his position on such issues, although he has accumulated during his tenure as counsel at the Mayo Clinic. He has a lot of medical expertise, and he understands the latest developments and reforms of the medical system better than other justices.For example, at the annual meeting of the American Public Health Association in 1968, it voted to support the abolition of laws restricting abortion, and called for "opening up the field of abortion as soon as possible, and empowering and protecting people's right to choose how many children they want." Abandoning their long-held anti-abortion stance and providing abortion-operating guidelines to a handful of practicing physicians in pro-choice states. In June 1970, the board members of the American Medical Association voted to allow licensed doctors to perform abortions in states where abortion is legal, provided that the surgery must be performed in a hospital and must be agreed upon by two other doctors.Two months later, the executive board of the American College of Obstetricians and Gynecologists enacted a new policy that would allow doctors to perform abortions at the request of patients without requiring the consent of two other doctors, as the American College of Physicians rules.

In the Vucci case, Blackmun attached an article published in the internal journal of the American College of Physicians discussing possible civil liability for doctors who perform abortions or refuse to perform them.This article is an excerpt from a case that occurred in New York in 1968. Two years ago, New York State repealed the abortion restriction law, making abortion legal for anyone who was pregnant before 24 weeks.Under the old law, many middle-class women would voluntarily contact private medical institutions to perform abortions in the name of "treatment" with the approval of the medical board.A New York court has found a hospital negligent when doctors refused to perform an abortion, resulting in a woman with German measles failing to terminate her pregnancy and giving birth to a severely deformed baby.

Exactly where abortion laws will go is an open question, but Blackmun has a keen eye for the consequences of unwanted pregnancies.His second daughter, Sally, had an unexpected pregnancy in 1966 when she was a sophomore at Skidmore College in upstate New York, at the age of 19.Although the Blackmuns' connections in the medical world made it possible to arrange a safe abortion for their daughter, the Blackmuns forgo the option.Sally finally decided to drop out of school and married her boyfriend who was only 20 years old.Unfortunately, within three months of their marriage, Sally suffered a miscarriage, and the marriage ended without a problem. (She later re-enrolled and was admitted to law school, remarried and gave birth to two daughters. Because people generally lacked contraceptive measures at that time, about half of all pregnancies were accidental pregnancies, and about one million women risked death or The risk of lifelong infertility terminates a pregnancy, and the resulting family tragedy abounds.

If the women are lucky, they might find Serbian-born Dr. Milan Vucic, whose Washington clinic has performed safe abortions on thousands of women, charging between $100 and $200 per procedure.Of course, this type of surgery is illegal under local law. In 1969, Dr. Vucic was prosecuted for violating the District of Columbia abortion law. According to the law passed by the local assembly in 1901, doctors who perform abortions unless it is "really necessary to protect the life and health of pregnant women" will be sentenced to up to The sentence can be up to 10 years.Dr. Wu Qi's approach is strongly supported by abortion reform campaigners. He applied to the court to dismiss the charges and argued that the relevant abortion laws are unconstitutional, because the law lacks a precise definition of the word "healthy", and doctors cannot predict that their actions are legal. Still illegal.Federal District Court Judge Gerhard Gesell upheld his claim, ruling to dismiss the charges and declaring that the law "does not meet the requirements of procedural justice necessary for criminal law because it is ill-defined." Gesell is a member of the federal court system. First judge to declare abortion laws unconstitutional.After the federal government lost the case, it bypassed the appeals court and appealed the case directly to the Federal Supreme Court, which led to a jurisdictional issue, namely: whether the Supreme Court can directly accept this kind of leapfrog appeal case.

In the pre-trial memorandum, Blackmun carefully considered the jurisdictional issues involved in the case and decided to oppose the leapfrog appeal. "I am in favor of limiting as much as possible those cases that come directly to the Supreme Court," he wrote. , he "intends to stand his ground on procedural matters," but he believes the law should define specific issues so that doctors can make decisions without fear of jail time. "An honest medical judgment is clearly the best defense against the laws of the District," Blackmun wrote.In other words, the law should interpret the scope of the "health exception" more broadly.He then turned to another issue, an issue that the case originally articulated and one that the Supreme Court was reluctant to take lightly: the right to privacy.If the majority of justices refused to make an expansive interpretation of the "health exception," he wrote, "I will provide a reasonable interpretation of the relevant issues based on the theory of privacy rights."

Although Blackgate didn't explain further, he knew very well in his heart that another door opened.He could invoke the Supreme Court's six-year-old opinion in Griswold v. Connecticut, which struck down state bans on contraception on the basis of a "right to privacy." Provisions.However, no matter how long Blackmun intends to walk on the idea of ​​privacy rights in the future, there is no need for him to express his views prematurely.Hugo Black, whose first draft majority opinion circulated throughout the House, asserted the Supreme Court's jurisdiction in the case and called for a broader interpretation of what a "health exception" means.In other words, abortion is not only to protect a woman's physical health, but also her mental health. "Only assuming that the interpretation of the word 'health' includes both physical and mental health is consistent with our colloquial use and modern understanding of the term," Black wrote.He stresses that the dictionary defines "health" as "the state of well-being of body and mind" and adds, "The evidence suggests that there is nothing ambiguous about the word 'health'. In fact, a particular operation Whether it is necessary for a patient's physical or mental health depends on the usual diagnosis of physicians."

Whether it is from a social policy perspective or a constitutional perspective, Blackmun's position on abortion is steeped in the "Vuqi case" judgment.He disagreed with Black's conclusion that the Supreme Court had jurisdiction to take the case, so joined Harlan's dissenting opinion and challenged jurisdiction separately, with Brennan and Marshall joining his jurisdictional dissent.With four justices dissenting from Black's opinion, it is likely that an opinion being circulated will gain the support of a majority and become a majority opinion.Both Douglas and Stewart disagreed with Black's definition of "health": Douglas thought the law was too vague, and Black's attempts at words were useless.Stewart argued that once the "health" interpretation is relaxed, any fully licensed doctor can be "completely immune" from criminal responsibility after performing an abortion.Only Burger and White supported Black on issues of jurisdiction and legal interpretation.For these reasons, Blackmun told the other justices that he agreed to join Black's interpretation of the "health exception" to form a numerical majority to formally settle the case.Harlan followed Blackmun in deciding to vote for an expansive interpretation of "health".The result of the count was thus: 5 votes in favor of Supreme Court jurisdiction (Black, Burger, White, Douglas, Stewart) 5 votes in favor of "health" (Black, Burger, White, Blackmun, Harlan) .

On April 21, 1971, the "United States v. Wu Qi case" was pronounced, and the Supreme Court's first abortion case was officially concluded.For some technical reasons, Dr. Wu Qi became the loser, because the Supreme Court did not find that the relevant laws were invalid due to unclear definitions.The federal district court decision was overturned and criminal charges against him remain.But abortion supporters welcomed the Vucci verdict as a brilliant victory.The decision treated abortion as a surgical procedure that was not in any fundamental way different from other procedures, and the justices gave doctors enough diagnostic latitude to base their judgments solely on the basis of their own expertise.It should be pointed out that this time the Supreme Court did not cite the Bible but Merriam-Webster's Dictionary.The next day, the justices met again and decided to vote on two more abortion cases, Doe v. Bolton and Roe v. Wade.

The two cases, which appealed to the Supreme Court in the fall of 1970, dealt with different abortion controversies. Roe v. Wade is challenging a Texas law that, like most states, criminalizes abortion.Most of these laws were enacted in the second half of the 19th century in response to a wave of criminalization of abortion sweeping the country (Texas joined the movement in 1854). The law currently awaiting review by the Supreme Court was enacted in 1911 and later passed Slightly amended, it makes it a crime for doctors to perform abortions unless "with the intention of saving the life of the pregnant woman," punishable by two to five years in prison.

Doe v. Bolton is challenging a Georgia law that was just amended in 1968 to replace a law passed in 1876.The content of the new law is exactly the same as the Texas law, and it is an "improved" abortion law model, which has been adopted by nearly a quarter of the states in the United States.Georgia only permits abortion in the following cases: the pregnancy will endanger the life of the pregnant woman, or cause serious or permanent damage to the health of the pregnant woman, in the judgment of the attending doctor of the pregnant woman, and has been independently diagnosed by two other doctors; the fetus is "probably stillborn, or may become permanent mental retardation or handicap”; or the pregnancy was the result of an act of rape.Abortions must be approved by a special hospital committee and performed by hospitals with special qualifications.A further requirement is that the law applies only to Georgia residents, and doctors who perform abortions under any circumstances without the legal permission will be sentenced to 10 years in prison. Both cases, brought by pro-abortion activists to test the constitutionality of such laws, won in lower courts, but neither was a sweeping victory.The Texas District Court has declared the state law unconstitutional because of its vague meaning and violated "the fundamental right of single and married women to choose whether to have children." Georgia District Court ruled that the state's 1968 law requiring abortion must be residents of the state, And the law that abortion must be approved by the special committee of the hospital has too many restrictive clauses, which violates the privacy and "personal freedom" of pregnant women. as a basis, but both have transgressive interpretations.The Texas court relied on the 1965 Griswold v. Connecticut decision, which did not directly discuss abortion but held that married couples' right to contraception is constitutionally protected.Relying on the concurrence in Griswold supporting the right to privacy in marriage, the district court sought support for the ambiguous Ninth Amendment, which states: "The enumeration of particular rights in the Constitution does not mean that The denial and derogation of other rights due to the people." The Georgia District Court not only cited the Ninth Amendment to the Constitution, but also cited the majority opinion in the "Griswold Case", which is subject to different provisions of the "Bill of Rights" The "grey areas" and "extended domains" of protection should also preserve the "privacy domain" that is older than the Constitution itself. The right to terminate pregnancy," the District Court decision read.But while the relevant laws have been overturned by the courts, no courts have issued injunctions requiring states to refuse to enforce said laws.It is for this reason that those who challenge these laws decide to appeal directly to the Supreme Court. Whether federal courts have the authority to issue the injunctions sought by plaintiffs is just one of the contentious jurisdictional issues that are a long way from solving the abortion problem.In fact, this is the main reason why the Supreme Court has delayed accepting Roe v. Wade. In February 1971, the long-awaited "Younger v. Harris" judgment was finally released, but it did not fundamentally resolve the abortion rights controversy.Regarding this issue, until the verdict of the "Wuqi case" was released, the justices still adopted delaying tactics for the trial of the "Doe case" and "Roe case".There was another technical problem in the Texas case, however.Plaintiff Jane Roy, whose real name is Norma McVeigh, filed the lawsuit in early 1970 when she was pregnant, and now that Roy's pregnancy is clearly over, the case is still pending. Why is the case not What about cases classified as invalid because "the issue at issue is obsolete"? The Texas and Georgia cases were originally scheduled for consideration in the fall of 1971.But in September of this year, just before the new trial period, both Justices Black and Harlan suddenly announced their retirement, citing their deteriorating health.Blake died two weeks later, and Harlan died in December of that year.The two vacancies left on the bench also created administrative headaches for Chief Justice Burger.The political arena at the time was full of gunpowder, and the failure of the president to nominate Hainsworth and Carswell in the past is still fresh in the memory. The two seats may not be filled quickly.If this is the case, many important cases can only be delayed pending trial.As a result, Berger appointed Potter Stewart and Harry Blackmun to form an interim committee to screen the pending cases, recommend which cases should move forward, and which cases should be considered after the nine justices get together again.The committee decided to proceed with the two abortion cases as previously arranged.Years later, in 1986, when William Rehnquist became chief justice and faced the same predicament, Blackmun recounted his experience to him. "I recall that the old chief appointed a deliberative committee, chaired by Porter, to screen those cases that could be considered first by the seven-member Supreme Court," Blackmun wrote. "I was also a member of this small committee, but we Didn't do a good job. Porter mistook 'Roe v. Wade' and 'Doe v. Bolton' as simple repetitions of 'Younger v. Harris' and decided to bring them to trial as soon as possible. We How wrong it was.” On December 13, 1971, the Supreme Court heard both cases.Three days later, the justices discussed the merits in a conference room and decided how to vote.Many subsequent reports on the case were mostly based on the documents left by the justices and the recollections of the judge assistants. However, all the records are vague about the discussions on the day of the justice meeting.Blackmun's meeting minutes also have such problems.He also, for the first time, did not leave any comments of his own.The little slips of paper he used to record the voting results were uncharacteristically marked "hesitating" in both "Roe's case" and "Doe's case."Still, his notes show that all seven justices found the Texas law unconstitutional. Douglas said any abortion law "becomes murky under the principles of due process unless it grants absolute immunity to doctors who perform abortions to protect the life or health of pregnant women." Stewart, Brennan and Marshall all voted to repeal Texas law.White believes that, in accordance with the spirit of the Supreme Court's "Wu Qi case", abortion is only allowed when there is a "health problem". This condition is sufficient as a basis for the judgment and there is no need to involve the issue of privacy."The state has the right to protect the fetus," White added, but no one raised the question of whether the case was invalid because it was outdated.Berg said the case had been classified as a class action, and the Supreme Court assumed that the class plaintiffs still included "pregnant members" so the issues were not "obsolete."Berg said there was "no problem finding the Texas law to be unconstitutional," but he hoped "amendments" to the district court's decision would follow. "Don't you need to ask for your husband's consent?" Compared with the "Roy case", the outcome of the Georgia case is not so clear.Berger "inclines to view the law as constitutional," Blackmun's preliminary conclusion agrees with the chief justice.Blackmun's "overall impression" of the law was that it was "pretty good and balanced interests among the various appeals," he noted in his notebook as he prepared for deliberations.His clerk, George Frampton, had prepared a 39-page memo the night before the Georgia case was deliberated and made an ambiguous point.The district court put too much emphasis on pregnant women's rights, but their arguments were weak, and Frampton wrote that their conclusions were "supportable, but too feminist and at odds with other interests." The best way to do this is not to emphasize women's rights, but to establish other standards in this law, and finally limit the purpose of abortion to protecting women's rights as much as possible." Douglas says Georgia's law is "much better than Texas" but still "very troublesome" How exactly should it work.White said he would likely vote for the law. "States have the right to protect the interests of unborn babies," he said. "The question is when to intervene." Brennan, Stewart and Marshall said they would overturn the law.Brennan's reasoning: "This law simply ignores the factual diagnosis of doctors." Berger reassigned Blackmun the task of writing the judgment, and even Blackmun himself could not understand why it was his turn to write it again.Perhaps it was his medical background accumulated during his time at the Mayo Clinic that made him an ideal candidate.However, the more important factor is Berger's own considerations. His unique political sensitivity makes him more aware of the importance of coordination than other justices. He hopes to use Blackmun's rigorous and precise judgments to reduce various disputes. So as not to waste much time on the minutiae.However, his considerations were not well understood outside the court, and the appointment was highly contested within the court.Douglas, who has been on the bench for 17 years and is the most senior justice on the Supreme Court, protested that he, not Burger, should be the author of the Doe v. Bolton opinion because Berger Grid is not in the majority in the Georgia case.Berger argued that there was no clear majority in the case at all, and that Blackmun could try to push for consensus by writing the decisions in both cases. Blackmun was uninspired by the mixed opinions at internal meetings.On the day he accepted his assignment, he wrote to Mayo Clinic Medical Librarian Thomas Keys, asking if the library had any books "pertaining to the history of abortion."Blackmun wrote: "Of course, if you would allow me to go to Baodi to do research for a week, I would be more than happy to do so." The staff of the Mayo Library immediately began to prepare and send the bibliographic list to Blackmun. Blackmun sought help not only from the Mayo Clinic, but also from her family.The youngest daughter, Susan, later described the scene when her father had dinner with everyone that night: "Shortly after Justice Burger assigned my father to write the judgment, all three of our daughters happened to be in Washington. At a family dinner, my father brought up the issue. , he asked Mom and us: 'What do you think about the issue of abortion?' Mom's answer was slightly to the right of center. She agreed that women had a right to choose, but thought it should be limited. Sally's answer was obviously well thought out and typical The centrist line, she's lived her whole life along that line—what a lucky girl. Nancy, a Radcliffe and Harvard graduate, was a strong advocate for left-wing intellectuals. I, at the time, He didn't come out of the hippie stage, and he spouted some ultra-left remarks, which shocked the old man. My father put down the knife and fork, pushed the chair away, and said, "I have a little headache. I think I should eat it." Go lie down.'". Later that year, Nixon issued a statement from San Clemente, Calif., that intensified the political overtones of the abortion issue and brought further attention to the Supreme Court decision.In doing so, he naturally prepared for re-election in the 1972 general election.Nixon announced that he would reverse the administration's policy of liberalizing abortion in military hospitals in recent years.For the past two years, under the old policy, military hospitals have been free to perform abortions.Today, such hospitals are also required to abide by the laws of the states in which they operate, and abortion is illegal in most jurisdictions. "This matter has been discussed in every state capital, and similar issues have been heard in different courts, and now the people of the country have a right to know where I stand on this issue," Nixon said, "whether it is my personal opinion or my religious position." , I think abortion is a population control measure that I cannot accept. Let alone unfettered abortion policies, or the demand for abortion, these are contrary to my belief in the sacred right of human beings to life-including those who have not yet Life born." The term "demand for abortion" was entirely Nixon's own invention, as a way of expressing his opposition to the practice of abortion.In practice, no one would use this term in medical litigation at all, for example, no one would say anything about "need to remove the cecum". The Nixon administration also got off to a bad start when it came to filling two vacant seats on the Supreme Court.The president still wanted to nominate a Southern conservative, but it was hard to find a Southerner whose civil rights positions were acceptable to the Democrats.After all, Democrats now control the Senate. In 1956, Richard Puff, a Republican from the Virginia Assembly who had signed the "Southern Declaration" against racial integration, was forced to withdraw from the race knowing that it would not be approved by the Senate.The White House plans to nominate Mildred Lilly, a female judge of the California Court of Appeals, as a justice. However, after investigating her judicial record, the American Bar Association voted 11 to 1 and determined that she was "ineligible". Another temporary choice is Hershel Freddy, a lawyer from Little Rock, Arkansas, who had resisted racial integration on campus, was not well received by the bar committee, and his nomination never came to fruition. By the end of October 1971, shortly after the new trial period began, Nixon finally announced his nominees.One is Lewis Powell Jr., a 64-year-old veteran lawyer from Richmond, Virginia, and a former president of the American Bar Association; the other is a well-known conservative from within the government, a 47-year-old assistant justice Minister William Rehnquist.The Senate voted 98-1 to confirm Powell.However, during the hearing, some senators criticized Rehnquist, and he finally passed the confirmation with 68 votes in favor and 26 votes against. Blackmun didn't know Powell, but he had a good impression of Rehnquist, who had helped him in the Senate confirmation process two years earlier. On December 10, the day that Rehnquist passed the confirmation, Blackmun wrote him a passionate letter: "I have held back until now to write to you because I was afraid of embarrassing you. After all, you have suffered during this period. Much criticism," Blackmun wrote, "now that those ordeals of being exposed, criticized, and even damaged by reputation are over, I offer you my sincerest congratulations and a warmest welcome. He added: "As the most junior member here, I am more familiar and understand your experience than others. If you need help, please let me know." He also reached out to Powell. On January 7, 1972, the two new justices officially sat in the trial bench. Blackmun was very happy because he finally changed from the "Ninth" of the Supreme Court to the "Seventh". More importantly, he was no longer Considered a rookie. Now that the Supreme Court has returned to full capacity again, Berger asked Blackmun what needs to be brought back for consideration. "I propose that the two abortion cases should be brought up for discussion," Blackmun replied. "I think that since these two cases are so important, they should be considered collectively." But Berger did not schedule another vote. Just let Blackmun polish the draft opinion as best he can. At the same time, without the participation of the two new justices, the Supreme Court began to deal with a new contraceptive rights case, "Eisen-stadt v. Baird" (Eisen-stadt v. Baird 0 Bill. Baird, a proponent of birth control and abortion rights, was convicted of violating Massachusetts law, which states that, except for Physicians and pharmacists, no one may dispense contraceptives.A federal appeals court in Boston had reversed Baird's conviction under the 1965 Griswold case, saying the law violated "fundamental human rights." When the Supreme Court met to consider the case, a majority of justices upheld the appeals court decision.Brennan drafted a majority opinion that expands on the Griswold case, which only protected married couples' right to contraception, to extend the protection to unmarried group. “If the right to privacy were to be given a concrete meaning, it would include the right of individuals, married and even single, to choose whether to conceive or have a child, a freedom that cannot be violated by government,” Brennan wrote , it is obvious that his words allude to the content of abortion, and people can easily think of related issues. For Blackmun, White, and Berg, Brennan's language, which strives to be all-encompassing, crosses the line a bit.Of course Berg disagreed, and White originally planned to vote against it, but after some consideration, he decided to only agree with the opinion of the majority to revoke the conviction.He submitted a concurring opinion that was circulated and made two main points: First, since the case file did not mention whether the students who received contraceptives were married or unmarried, there was no need to extend contraceptive rights to unmarried people.Second, the controversial contraceptive pills can be bought in any pharmacy, and users do not need a doctor's prescription, let alone receive a doctor's guidance. It can be said that the state is not very concerned about controlling this kind of drugs. "Unless Baird was distributing so-called 'oral contraceptive pills,' I would not consider sentencing him," White wrote.And Blackmun is also considering joining White's consortium. Berger was not at all in favor of quashing the conviction, and wished Blackmun had better not join White. On March 7, 1972, when the justices were hearing another case, Berg posted a note to Blackmun from the bench, saying that a dissent was ready.Berger said: "I was like being 'trapped' in the 'Eisenstadt case' and seeing the facts distorted by the previous two opinions, I was like Alice in Wonderland. I hope that when my You read Byron's opinion carefully when it starts to circulate. I'm bothered by the insinuations in it. This is a case about 'prescribing' or dispensing drugs, and the state can do it Regulation. I hope you will review Byron White's opinion again. Whether you join mine is another matter." There is no private communication between the justices regarding the pending cases.Berger's note was a clear violation of Supreme Court social conventions.In the Supreme Court, the normal operating procedure is that the first draft of the judgment opinion is first circulated among the justices, and the support or opposition is entirely based on the content of the opinion itself. When the justices intend to lobby others to join their side, they will formally send a letter and blend it in private. is not recognized.At this time, Berg used entirely personal friendship, and his tone was somewhat condescending.Whether Blackmun realized it or not, the purpose of the note was defeated. On March 22, the day the verdict was officially announced, Blackmun joined White's concurring opinion, and Berger issued a separate dissent, complaining that the majority and the concurring opinion "grossly violated the constitutional prerogatives of the states." During that time, Blackmun was still wrestling with several abortion cases.He believes that the case in Texas is easy to handle.The content of the Texas law is vague, just like the District of Columbia law in the "Wuqi case", which lacks a clear definition of the word "health". "I think that this case can be resolved from this perspective, and there is no need to involve the complicated Ninth Amendment of the Constitution." wrote in.At this time, the "Doe v. Bolton case" is still the "highlight" in his mind, because it takes a lot of energy to define abortion rights, and he has not yet planned to share his views on this case with his colleagues. The first draft of the "Roe case" opinion is only 17 pages, most of which discusses the issue of jurisdiction.In only three pages, Blackmun analyzed the constitutional issue he extracted: the law stipulates that abortion is only allowed "in order to save the life of the pregnant woman". Such exceptional conditions are not clearly defined. How to determine its meaning?Does this mean that a doctor will only perform an abortion if it is so necessary that the patient would die if not performed?Or, only do it if the probability of her death is greater than usual?Or can it be done when there is even a slight danger to life?Or do you have to be on the verge of death?Or can you do it if you can live for a year, a month, a few days, or a night at most?如果为一位“不满14岁”或者因被强奸、乱伦而怀孕的母亲堕胎，算不算“挽救”她的生命？如果是为维护她的精神健康呢？布莱克门认为，相关法律的例外规定“无法给医生们提供充分提示，反而会使他们因为其模糊不清的含义，陷入失去自由的危险。” 在初稿的最后几段，布莱克门承认，本案还蕴含更深层次的议题。“我们认真审阅了各方提供的大量'法庭之友'意见书，其中不乏医生、医护人员和相关领域权威人士。”他说，但是，根本“没有必要”讨论什么堕胎权，更没有必要“考虑胚胎或三个月以上成形胎儿的权利。”问题的症结在于，这项含义含混的法律根本就是违宪的。 不过，上述意见根本无法满足道格拉斯、布伦南和马歇尔等自由派大法官对“罗伊诉韦德案”的期待。几天后，他们才从布莱克门提交大家传阅的“多伊诉博尔顿案”意见中获得安慰。他援引新近宣判的“艾森斯达特诉贝尔德案”以及“格里斯沃尔德诉康涅狄格州案”和“洛文诉弗吉尼亚州案”(Loving v.Virginia)，推翻了佐治亚州法律的主要条款。“洛文案”是1967年一则判例，在此案中，最髙法院宣布州禁止不同种族通婚的法律无效。布莱克门通过援引不同判例，试图证明，“一位女性决定是否生育的权利，是受宪法第九修正案和第十四修正案保护的。”但是，这项权利并不“绝对” “人类的认知仍在不断发展，作为法官，我们无法对生命到底从何时开始进行细致推测与界定。”布莱克门写道。在孕期的某一个时刻，另一个生命便逐渐形成了，这时，孕妇所拥有的隐私权便不再仅限于孕妇本人，还涵盖了另一个生命的隐私权。也正是在此时，孕妇的个人隐私权才要受到“州的利益”的制衡。 同僚们的冷漠回应令布莱克门感到，他不大可能在本开庭期未解决这个案子。5月31日，在伯格的支持下，他提出正式申请，希望在秋天重议这两起案件。当然，布莱克门内心是不太情愿的，他在日记中写道，重新审议“将耗去我更多时间与精力”尽管布莱克门没有明说，但其他大法官很清楚，一旦案件排期再议，判决意见就很难保证还由布莱克门撰写了。事实上，两位新任大法官的加入，使案件结果成为未知之数。尽管如此，布莱克门还是认为：“我相信，既然这个议题这么重大、敏感，牵动各方情绪，国家理应以一个九人法院，而非七人法院来得出结论，无论最终判决是什么。” 自由派大法官们很警惕再次审议的决定，他们认为，鲍威尔和伦奎斯特肯定会支持限制堕胎的立法。道格拉斯非常愤怒，认为伯格出尔反尔，还专门就重议决定发布了一份异议意见。当然，他最后还是默认了这一结果，1972年6月26日，重议决定发布时，只附带提及了他的异议。 布莱克门一进入最高法院，就习惯在“重要大事记”上记录每一开庭期的重要事件。从他的“重要大事记”里，可以看出这一时期的紧张气氛。他在6月9日的记录中提到了道格拉斯：“重议堕胎案的决定——道格拉斯很想'写'。”10天后，布莱克门记下：“道格拉斯说他不会传阅对堕胎案的评论了！”然后他补上一句：“灯光已在隧道尽头燃起。” 他对事情走向的判断仍是乐观的，夏季闭庭期的到来，缓和了之前的紧张气氛，也令案件前景日趋明朗。布莱克门的法官助理乔治·弗兰普顿继续准备佐治亚州那起案件的判决意见，与他合作的另一位助理名叫约翰·瑞奇，是布莱克门从伯格的“死对头”特区巡回上诉法院的戴维·贝兹伦法官那里“挖”过来的。弗兰普顿与瑞奇提醒布莱克门，“多伊案”的判决意见应重点关注相关条文含糊不清的问题，同时，也应注重强调并澄清堕胎是一项宪法权利。弗兰普顿还建议对隐私权做扩张性解释。 七月底，布莱克门来到梅奥诊所图书馆，那里的职员已经为他准备好一处办公区，与堕胎历史、实务相关的书籍、文章已放入专架，供他查阅。他做了详细的笔记和标注，给每一份需要援引的重要事实和观点做上记号，并用工整字迹誊抄在便签本上。比如，他从1971年3月的《美国公共卫生期刊》中，摘下了这么一段话：“在怀孕三个月内堕胎的法律风险，要低于在此之后的堕胎行为。”由于这篇文章详细考察了各州议会、法院，以及世界各国对堕胎看法的变迁，布莱克门专门复印了一份，并带回华盛顿。文章结论是：“美国最髙法院的行动十分关键，将对这场运动的发展速度起到决定性作用，无论那些悬而未决的案件结果如何，时钟是无法逆转的。安全、合法的堕胎将成为女性的基本权利，它是对母亲健康与家庭幸福的有力保障，更能确保每个孩子被养育和宠爱。” 布莱克门还保存了民意测验专家乔治·盖洛普1972年6月就公众对堕胎的态度所作的一份民意调查。《华盛顿邮报》刊登这则报告时，所附标题是“堕胎是由女性、医生决定的”“每三个美国人中，就有两个人认为，堕胎应该是由女性和她的医生决定的事。”民意调查报告以这句话开头。报告说，数量“远远超过事先预想”的受调查者支持对“堕胎法进行完全自由化的改造”对于“堕胎是否应由女性和她的医生自己决定”这样的问题，64%的人赞成，31%的人反对，还有5%的人不置可否。男人与女人对这类问题的态度并无差别。受过大学教育者，支持堕胎权的占87%。罗马天主教徒中，也有56%的人支持堕胎权。所有受访族群中，只有那些只受过小学教育的人，才大部分反对合法堕胎。 1972年10月，新开庭期开始了，布莱克门感觉思路越来越清晰。他不知道其他大法官，尤其是两位新同事会怎么想，但自己已经有了明确的想法。在为10月11日的重新审议做准备时，他用自己特有的速记方式，在一张便签纸上写下了以下想法： 接着，他在旁边潦草写道：“人对自己的身体并没有绝对的权利。” 最后，他为德州案件的判决意见列了一个粗略提纲： 最后一处关于堕胎历史的论证，反映了布莱克门在梅奥诊所的研究成果。这些研究使他坚信，将堕胎行为界定为犯罪，只是近些年才出现的现象，并不是源自英国的普通法传统。 再次审议两起案件后，大法官们准备在两天后进行投票。参加投票前，布莱克门准备带着佐治亚州案件的判决意见提纲参会，对他来说，这起案件更为重要。尽管撰写意见的任务这次未必会分配给他，但他仍然认为，“我有权将自己的意见交大家传阅。” 在日记里，布莱克门透露，他对于“我们”将案件搁置到本开庭期审理，感到“非常欣慰”在罗切斯特的一周，使他“对医疗史有了前所未有的了解”他明确表示，希望由自己来撰写判决意见。“我已投入不少个人精力在这个案子里。我将对自己原来的意见进行进一步修改与展开，争取贏得多数人的支持。”“这不是一件好差事，”他说，最高法院“必将因此受到外界攻击” 在为“多伊诉博尔德案”新撰写的意见提纲中，他围绕隐私权进行了系统分析：“许多判决都以隐私权为依据，范围之广，足以将是否终止妊娠的权利涵盖在内。但是，这项权利并不是绝对的，仍然可能有其他类型的利益牵涉在内，比如，生命或者潜在的生命。”写到这里，他在空白处加上了“健康”一词，并在后面添了句话：“胎儿并不等于宪法中的'人'。” 在提纲的结论处，布莱克门做出了一个过于乐观的判断： 最后两点提示，是说最髙法院可以在1973年宣判，但应当延缓几个月再发布相关指令，这样各州才有时间修改堕胎法律。10月13日的会议，对案件走向起到了至关重要的作用。刘易斯·鲍威尔是位温文尔雅、宽厚温和的绅士，说话带着些弗吉尼亚口音。他对堕胎权的支持态度，令其他同事大吃一惊。鲍威尔说，他“部分赞同”布莱克门的意见，但希望德州案件的判决不仅仅是基于法律中对“健康”定义的含糊不清，还要把判决的依据放得更宽泛一些。“成为一起标志性案件。”他建议将堕胎问题正式当作“一个广义上的医疗问题来看待”斯图尔特也希望德州案件的判决范围可以更广泛些。他建议，可以参照位于康涅狄格州的联邦地区法院一个月前作出的一个判决的思路。在这起名为“埃伯利诉马克尔案”(Abele v.Markle)的案件里，法院以隐私权为依据，推翻了一部与德州法律内容相似的法律。乔恩·纽曼法官在判决意见中，援引了布伦南大法官在“艾森斯达特诉贝尔德案”中的判词，即人们无须政府指手画脚，“都有权选择是否要怀孕并产下一个小孩”在引用的判词中，纽曼法官特意用斜体字强调了“怀孕”二字。 讨论过程中，仅有怀特与伦奎斯特明确提出异议。伦奎斯特说得不多，但怀特发表了长篇大论。他说，他本人在堕胎上的立场偏向“自由派”一方，但是，作为一名法官，他“不愿对州的立法进行事后批评”“为了便利人们堕胎，我们严重低估了州在这类问题上的利益”。 伯格指出，“德州的法律必须推翻”但是，到底该如何处理佐治亚州的法律，他还没有考虑清楚“用何依据”他再次指定由布莱克门来撰写判决意见。 5周之后，布莱克门将“罗伊诉韦德案”的意见提交全院传阅。意见长达50页，用大量篇幅论述了堕胎历史和关于堕胎的医学观点。相对于去年春天那份，新意见给其他大法官留下完全不同的印象。关于隐私权的论证，已经从佐治亚州案件的意见草稿中，完全移至德州这起案件的判决意见。其中，最主要的变化，在于布莱克门将怀孕的时间段与州介入的时机建立了关联。“您将发现我的结论是，怀孕的前三个月是个关键。”11月21日，布莱克门在送交同僚传阅的意见中写道。“这一标准或许有些武断，但是，其他主要标准，如胎动说或发育说，也同样非常武断。”他说：“这次任务指派很有趣。”德州的“罗伊案”现在反而成了牵头的案子，其确立的原则将直接适用于佐治亚州的案件，并推翻该州相关法律。 这起案件现已进入冲刺阶段。道格拉斯终于打消了之前的疑惑，加入了两起案件的意见。“你干得很棒！”11月24日，他在给布莱克门的信中说。同一天，伦奎斯特告诉布莱克门，他将发布异议意见。但是，这封信的措辞非常温和：“您提出的论点，比我想象得要好很多，我必须为此向您脱帽致敬。” 尽管个性、观点皆有差异，但是，自布莱克门在提名期间结识伦奎斯特以来，他俩的关系也日趋紧密。1972年3月，“施内布利诉佛罗里达州案”(SchnMe v.Florida)宣判后，布莱克门给伦奎斯特送去一份判决意见复本，并在封面上写道：“亲爱的比尔，这是你到最高法院后发布的第一份判决意见，你能给我这样的殊荣，在这份意见上签名，好让我的曾孙在百年之后仍能引以为荣么？”伦奎斯特回复道：“乐意之至！”他在判决书的第一页写下：“致哈里·布莱克门，小弟致以最诚挚的问候与敬意，比尔·伦奎斯特。”不久，为邀请布莱克门参观自己在佛蒙特州新置的度假屋，伦奎斯特在邀请函署名处签的是“您的挚友，比尔”。 布莱克门也收到鲍威尔“热情洋溢”的祝贺。“意见反映出的学识与分析都令人印象深刻，毫无疑问，它将说服最高法院全体人员。”鲍威尔提出的建议，没必要急着在怀孕前三个月去界定州的利益所在，似应考虑在怀孕第四个月到第六个月寻求州介入的可能，这个时候，胎儿已经开始在子宫之外存活。这也是纽曼法官在康涅狄格州那起案件中尝试表达的观点，但没有在判决意见中直接挑明。鲍威尔认为以这个时间点作为州介入的标准是可行的，他说：“我非常赞同这个观点，在这一期间，胎儿已开始存活，州的利益逐步凸显，之前三个月是很难确定标准的。” 布莱克门请他的新任法官助理兰德尔·贝赞森分析一下鲍威尔的建议。助理对此却毫无热情。他在备忘录中问大法官，怀孕第三个月末与胎儿存活期之间会发生什么事呢？州在这个过程中对妇女健康的关切难道是逐步增加的么？“您提到，以孕期头三个月为期是相对主观武断的切入点，但是我并不这么认为，而且我也不想过多限制各州从孕期第三个月底到胎儿存活这段过渡时间中的利益”贝赞森认为，“鲍威尔大法官的观点同样有武断之嫌”他还是支持布莱克门之前的观点。 12月4日，布莱克门正式回函答复鲍威尔，他说，他仍然认为以怀孕头三个月为期比较合适，“如果关于存活能力的说法能够说服其他大法官，我也愿意接受它。”但是他对此持怀疑态度。“至于怀孕头三个月到胎儿存活这一期间，我认为可由各州根据医学结论去判断。”布莱克门总结道。 一周后，鲍威尔在审判席上传给布莱克门一张亲笔便签，上面说：“无论你是否提到'存活能力'的问题，我都将加入你现在的意见。”鲍威尔还写道：“对我个人而言，存活能力之说确实是个更具逻辑力和说服力的观点，但也并非不可或缺。” 鲍威尔与布莱克门仅限于私下讨论。布莱克门最终还是决定就此事征求一下其他大法官的意见。1972年12月11日，他在提交大法官全体会议的备忘录中写道，存活能力的说法“当然有它合理的地方”“从逻辑和生物学方面，这种说法都有一定依据。在实践中也是一样。我敢肯定，许多孕妇，尤其是很多年轻女孩，要等到孕期第四个月，或者之后更久，才愿意面对怀孕这个事实。”布莱克门说他会“考虑重写这部分意见”但他不想因此令多数意见方的大法官改变主意。 道格拉斯很快用一句话回应，说他仍然坚持怀孕头三个月的标准。马歇尔与布伦南的看法则更为重要。“存活能力的说法更容易与州的利益联系在一起，”马歇尔说，现在的判决意见，可能被人解释为，州可以在孕妇怀孕满三个月后的任何时间内，“完全禁止堕胎”他建议将判决意见明确解释为，“孕妇怀孕满三个月至胎儿存活这段期间，州可以在考虑孕妇健康与安全的情况下，对堕胎行为进行适当管制”布伦南的提议与马歇尔差不多，但他建议布莱克门可以对州在什么时候可以进行堕胎管制说得更明白些。“我认真思考过。'存活能力'这一概念更着眼于胎儿，而非孕妇。”布伦南说。“我们可以说，如果胎儿开始'存活'，州当然有义务保护潜在的生命，州在这方面的立法也可以宽泛一些。” 伯格也做出了回应，但并非针对布莱克门的问题。相反，他说：“我花大力气'钻研'了你的观点，但有件事我必须提醒你，你是不是应当考虑一下丈夫或未成年人的父母在这类问题中的'权利'？” 布莱克门说，他将于年底传阅新的意见初稿，12月21日，他果然准时履诺。在判决意见中，他指出。在德州案件中，州介人堕胎管制的时间完全取决于怀孕进程。而州有两个“重要并且相对独立的”利益：其一，保护孕妇健康的利益；其二，保护胎儿潜在生命的利益。但在怀孕最初三个月，胎儿尚未成形，堕胎给孕妇带来的伤害，要小于整个怀孕以及生产过程给孕妇带来的潜在伤害。在此期间，堕胎的决定和施行“必须取决于孕妇主治医生的医学诊断”但是，一旦妊娠继续进行，承载各州利益的法律保护的侧重点就移转至胎儿利益，而非女性权利。在头三个月之后，各州可以对堕胎实施限制，但只是“以与母体健康相关的方式”最后，“在胎儿能够自然存活的阶段”各州可以限制乃至禁止堕胎，“为了保护母亲的生命或健康而必须进行的堕胎除外”。 在一个脚注里，布莱克门对伯格关注的父权问题做了说明。他认为，现在没必要考虑这个问题，因为无论是德州的案子，还是佐治亚州的案子，“没有人主张父权”。 判决意见将隐私权作为堕胎权的基础，与之前相比，并没有太大改动。涉及这类问题的只有四段，内容也有些语焉不详。“宪法并没有明确提及隐私权，”布莱克门开篇就指出了这一点，但是，最高法院既往先例承认对“隐私特定领域的保护”接着，他列举了14个判例的名称，即“格里斯沃尔德诉康涅狄格州案”、“艾森斯达特诉贝尔德案”和“洛文诉弗吉尼亚州案”布莱克门指出，没有必要硬要说宪法某一条文包含了隐私权，“我们可以从宪法第十四修正案中的个人自由中推导出隐私权的概念，也可以根据地区法院的判决，从第九修正案的未列举权利中找到这一权利，作为基本权利的隐私权范围之广，足以把妇女对于是否终止妊娠的决定权包括在内”。 道格拉斯、鲍威尔、布伦南、马歇尔和斯图尔特都毫无保留地加入了布莱克门的意见。怀特、伦奎斯特均表示要发表异议意见。现在就等着伯格表态了。他表示双方意见都有自己想加入的内容，正考虑如何分开表述。最高法院的圣诞休庭期结束后，各州议会也陆续开始议事。伯格的意见却迟迟未公布，布莱克门与其他大法官有点儿不耐烦了。“哈里，'多伊案'、'罗伊案'会在明天宣判么？”1973年1月16日，波特·斯图尔特在审判席上传给布莱克门一张便条。“谁知道呢？”布莱克门回了张纸条说，“我也不知道明天能不能宣判。他说他会写。我希望最迟能在22号，也就是下周一宣判。不能再拖了。” 收到这张纸条后，斯图尔特潦草批注道：“我完全同意。” 布莱克门越来越怀疑伯格是因为政治上的原因，故意搁置自己的判决意见。1月20日，这位首席大法官即将主持理查德·尼克松连任的宣誓仪式。作为尼克松提名的首位最高法院大法官，伯格也许不愿在此之前宣判堕胎案，而令总统难堪。1月18日，伯格终于递交了3页纸的协同意见，他在意见结尾写道：显然，最高法院不认为宪法有所谓“堕胎需求”。 尽管布莱克门内心有所怀疑，他还是就宣判内容咨询了伯格的意见。布莱克门意见原文中有句话：“我们尽可能寻求发现医疗组织和许多法院在堕胎问题上的态度转变……”伯格将这句话改为“我们无法不注意到……”在退给布莱克门的意见复本中，伯格写道：“我们不应该去寻求别人的态度转变！”布莱克门接受了他的修改建议。 1973年1月22日清晨，多蒂·布莱克门也在法庭旁听席上就坐。刘易斯·鲍威尔传给她一张手写字条，上面写道：“多蒂，哈里写下了具有历史意义的判决意见，我很荣幸能加入其中，他今天早上的宣判内容将精彩绝伦，很高兴你能莅临现场。” 在当天的“重要大事记”中，布莱克门写道：“堕胎案了结。约翰逊总统去世。”在许多报纸上，两件事的报导秩序完全相反，关于前总统去世的报导铺天盖地，完全遮蔽了来自最高法院的新闻。但是，天主教会可是在全神贯注关注此事。第二天，布莱克门简单记下：“堕胎攻击开始——三位红衣主教——梵蒂冈——罗切斯特发来电报！”梅奥诊所内部非常欢迎这一判决，那里的妇产科主任可是把德州法律告上法庭的人。 几天后，布莱克门与他的法官助理兰德尔·贝赞森一起飞往爱荷华州的锡达-瑞皮德斯，那里是贝赞森的家乡。布莱克门本打算在当地商会的一个餐会上演讲，却遭遇大批反堕胎者抗议。“被警戒！——警察保护。”这位大法官在当日“重要大事记”中记下此事。对哈里·布莱克门来说，人生的新阶段就这样开始了。

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