Chapter 11 Chapter 8: Saving the "Roy Case"

During his time at the Supreme Court, Harry Blackmun received occasional death threats from anti-abortion activist groups. Late at night on February 28, 1985, a bullet shattered the window of his apartment on the Potomac River.At first, people thought it was a terrorist act by an anti-abortion organization, but the police soon found out that the bullet fired from a distance was completely accidental and did not target Blackmun himself.However, the shooting still greatly affected the justice's life.Supreme Court security decided it would not be prudent for him to drive to work himself.From then on, Blackmun could no longer drive the Volkswagen Beetle in and out of the court garage, and had to rely on a special car to get to and from get off work.Although the round trip is only a few miles, and compared with self-driving cars, private cars are more convenient, but the change in travel methods still reminds Blackmun every day that the "Roe v. Wade case" has become an inescapable brand in his life.

In fact, he didn't need to be reminded at all: in the mid-1980s, the "Roy case" once again became the focus of controversy in both political and legal circles.The new abortion cases come in a steady stream, each a test of the Supreme Court's previous positions. The justices who joined the majority opinion in the "Roe case" in 1973 were either old or honorably retired, and some had even changed their positions.The first was William Douglas. After he retired in 1975, Blackmun pinned his hopes on his successor, John Paul Stevens, who had already backed Blackmun in the Hyde Amendment case in 1980. Naturally would vote against any attempt to overturn the "Roe case".Potter Stewart had retired in 1981, and her successor, Sandra O'Connor, was amply shown by her vote in the 1983 case of City of Akron v. Akron Reproductive Health Centers that she did not agree with Blackmun Viewpoints in "The Roe Case." During the court session in 1985, there was a revival of waves, and it was Warren Berger who set off this storm.

The new case before the Supreme Court, known as Thornburgh v. American College of Obstetricians and Gynecologists, is challenging Pennsylvania's 1982 Abortion Control Act There are certain differences between this case and the "Akron case": First, the Reagan administration asked the Supreme Court to overturn the "Roe case"; secondly, after several years of hesitation, Berger finally decided to abandon the "Roe case" judgment.Blackmun included a note in the file, which read: "We reaffirmed the principles of 'Roe v. Wade', when, led by the Chief Justice, we reached a decision by 7 votes to 2, Today, perhaps based on some personal considerations, he has turned his back on the idea of ​​the year." Although Blackmun had foreseen Berg's position change, he still found it difficult to accept the other side's betrayal.He wrote in the margin after Byron White's dissenting opinion: "Well, he finally spoke his mind. He didn't like the 'Roe' decision at all. O'Connor and Renquith Trump would certainly join the opinion. But how could the chief justice who joined the majority in 'Roe' do so?"

In fact, Berg did not join White's dissent, and he issued a dissent in his own name.He said he was "deeply appalled" that the Supreme Court had struck down an "informed consent" provision of Pennsylvania law that required hospitals to provide pregnant women with reports on fetal development every two weeks , and told her that abortion would lead to "multiple negative effects, both physical and psychological." Burger asked: "Is the Supreme Court saying that the Constitution prohibits doctors from communicating with pregnant women about this kind of critical information?" If the Supreme Court really thinks so , "Then I would support revisiting the 'Roe case.'"

O'Connor also submitted her dissenting opinion. "I must admit that I question not only the wisdom of the Supreme Court, but also the legality of what the Supreme Court is doing. How can we rush to invalidate abortion restrictions in state law without regard to relevant interests?" Blackmun said in this opinion. An exclamation point was placed on the page, with the caption: "She is against abortion." Blackmun wrote the majority opinion in the case.In fact, the so-called "majority" is only a narrow majority of 5 votes to 4 votes.In his first draft, he directly criticized the call to overturn the Roe case in the complaint filed by the lead government lawyer.He pointed out that Pennsylvania's argument that the relevant legal provisions conform to the spirit of the "Roe case" judgment is too far-fetched.Blackmun wrote, "It is inconceivable that, in the absence of any such request, the lead government lawyer would have us abandon constitutional principles established by prior precedent, and we refuse to do so." Stevens and Powell urged Blackmun to delete the Go to this straight criticism.Powell believes that the judgment should be straight from the heart. He said: "For those who agree with the 'Roe v. Wade' judgment, to directly interpret your attitude from it, 10 pages are enough."

Blackmun accepted the above suggestion. On June 11, 1986, when the "Thornborough case" was pronounced, he adjusted the wording of the last paragraph of the majority opinion, not only reaffirming the gist of the "Roe case", but also directly expounding his position from the perspective of women's rights unprecedentedly. "We've long had a litany of cases that recognize that the Constitution guarantees an area of ​​privacy that is unique to individual liberty, and that area is off limits to the government," he said. "This guarantee applies to both men and women. In no case is it more relevant that a woman, under the guidance of a physician, or within the limits of the principles established in 'Roe', decide whether to terminate a pregnancy It is about privacy, dignity and autonomy. It is a fundamental right for a woman to freely decide to terminate her pregnancy. In my opinion, other measures will inevitably miss everything, and only by adopting the current approach can the rights of all people be equally protected.”

Berger's betrayal is only a harbinger of a huge change in the next few years, which will continue to push the "Roy case" into danger. Six days after the "Thornborough case" was pronounced, Berg announced his retirement (during this period, the justices were still arguing about the "Darden case") President Reagan nominated Rehnquist to replace Berg as chief justice, and Antonin Scalia was selected to fill the vacancy left by Rehnquist's promotion.Scalia is a prominent and sharp-talking conservative from the District of Columbia Circuit Court of Appeals.Even without considering Berg's defection in the Thornborough case, the president's new appointment will inevitably add a dissenting vote to the "Roe case" among the justices.However, although the majority of the "Roy case" to which Blackmun belonged was downsizing, the camp is still stable.

At this point, Berger's friendship with Blackmun was completely over.The two barely corresponded anymore. "Warren Berger Announces Retirement." June 17, 1986, Blackmun recorded in "Key Events." In 1989, he declined an offer to William Mitchell Law School.The college, Berger's alma mater, wanted Blackmun to be present at the groundbreaking of the Warren Berger Law Library. In 1993, on the occasion of the 60th wedding anniversary of the Bergers, Blackmun, the former best man, sent a congratulatory letter and recalled the honeymoon that year. “I vividly remember that car speeding all the way in the direction of Washington on a bright November day,” he wrote. "You've accomplished a lot since then." Berger wrote back a month later.He said that he had been in the hospital before, "Time flies, we have become accustomed to it, and extend our deepest blessings." The letter was signed by the secretary.

The relationship between Harry Blackmun and Warren Berger is intricate and deep, and his life is full of intertwined entanglements.If you want to describe in detail how this friendship ended, I am afraid it is difficult to describe it in one word, because it was not caused by one or two incidents, let alone a fierce conflict in a specific case. It can be said that it is the result of a series of accumulated disappointments, like dripping water wears away a stone, Sold out after years of wear and tear.Both of them had unrealistic expectations of each other.In fact, after they grow up, they live thousands of miles apart. They seem to know each other, but they don't really know each other.Feeling lonely during his first year on the Supreme Court, Blackmun turned to old friends for comfort, and Blackmun mistook himself for lifelong confidant while giving all kinds of warm advice.But when he entered the Supreme Court as a newcomer and struggled through the adjustment period, Berg has returned to normal and moved towards his stated goal.

Berg was convinced that Blackmun would support his cause, but many of the two's ideas were fundamentally opposite.It didn't take long for the cracks to show.According to Joseph Kobilka, a professor of political science at Southern Methodist University, Blackmun agreed with Berger in 87.5 percent of cases during his first five Supreme Court sessions (1970-1975) and only 13 percent. In the case, he agrees with Brennan, the leading liberal.But over the next five years, from 1975 to 1980, Blackmun sided with Brennan in 54.4 percent of cases and with Berger in 45.5 percent of cases.During his final five years with Berger, he sided with Brennan in 70.6 percent of cases and Berger in just 32.4 percent of cases.

The breakup of their longstanding friendship cannot, of course, be entirely explained by ideological differences.For example, although Blackmun and William Rehnquist had very different views on many important issues, the relationship between the two had always been good, and they both believed that the other's views were right and wrong.But in Blackmun's eyes, Berger has always liked to treat disputes of opinion as personal grievances. "I don't know what he expects me to do, but what is certain is that he can't expect me to be a copy of his ideology. He knows very well that I am not such a person." In 1996, Blackmun in "William "So whenever I disagreed with him, he made his disappointment unabashed and blatant," said Mitchell Law Review in a short essay recalling Berger. Blackmun, himself a thin-skinned man, was particularly sensitive to Berger's slights, even if they did not imply too much personal emotion. During the 1977 trial, Blackmun missed oral arguments in December due to prostate surgery, and he was not given an opportunity to write a judgment for the next two weeks.In April of the following year, he sent a letter to Berger listing the number of majority opinions written by each justice this session.Berg and Stevens had the most, with 14 each.Blackmun is the least, with only 10 pieces.Brennan also missed several oral debates, but wrote more opinions than Blackmun.Such a small number, he told Berg, "made me feel humiliated, and humiliated in public." In June of that year, when the "Bucky case" was pending, Berger was on the first anniversary of his tenure at Blackmun. A note came in at the same time, the tone of which was very different from previous years: "Cheer up - the hardest days are over!" Blackmun regularly notes Berg's disrespectful behavior in his "Calendar of Important Events." "For the first time the chief justice was so calm," Blackmun wrote at the beginning of the 1980 session. "The Chief Justice always picks me up at meetings," he wrote on February 15, 1985.In fact, in his annual "Chronicle of Important Events", most of the records are family trifles or public events, and he rarely talks about the internal affairs of the Supreme Court.Blackmun's record shows that he was all too easily offended by Berg's disrespect.He was sensitive to references to the "Minnesota twins."This is the label that the media put on him when he entered the Supreme Court.Years later, he would bring up the nickname: "Everybody thought I was going to vote right next to the new chief justice. I reminded him, but he didn't take it seriously. Of course, we parted ways, and the story died of course. .” A year after Berger left, Lewis Powell also decided to resign.His departure has a great impact on the Supreme Court.Over the years, he has handled many cases with poise and skill. The fact that the "Roy case" has not been overturned for 14 years has a lot to do with his firm support behind the scenes.After Powell left office, President Reagan decided to nominate Judge Robert Bork of the Columbia Circuit Court of Appeals to fill the vacancy. In 1981, when Bork attended the hearing of the Senate Judiciary Committee, he openly declared that "'Roe v. Wade' is an unconstitutional judgment and a gross violation of state legislative power." He also said that "all constitutional scholars think so." Rejection The 1965 case of Griswold v. Connecticut established the framework underlying the constitutional right to privacy.The development of the situation is very unfavorable to the "Roy case". In 1987, the controversy surrounding Bork's nomination continued throughout the summer and remained inconclusive into the fall.The Senate finally rejected his nomination on October 23 with a vote of 58 against and 42 in favor.It was also the most dissenting Supreme Court nomination ever.This nomination battle heralds the trend of public opinion on constitutional issues.Once the anti-Bock forces convince the public, the confirmation of Bork will mean that the nomination of "turning back the wheel of history" on civil rights issues and abortion issues will inevitably end in failure. However, someone has to fill the void.Reagan then nominated Judge Douglas Ginsburg of the Court of Appeals for the District of Columbia to be a justice. However, it was soon revealed that this gentleman had smoked marijuana while teaching at Harvard Law School, and Reagan had to withdraw his nomination.A third candidate, Anthony Kennedy, had a much better public profile than Bork.Kennedy was a mild-mannered Californian whose 13 years on the Ninth Circuit Court of Appeals proved he was a centrist conservative.Although he did not state his position on the "Roe case" during the confirmation hearing, he agreed with the "Griswold case" judgment on the right to privacy, describing it as a "free zone and protected area." The strip, the place where individuals tell the government 'you must not cross this line'" Liberals who had earlier opposed Bork endorsed the new candidate. On February 3, 1988, the Senate voted 97-0 to confirm Kennedy's nomination. Long before Kennedy was confirmed, Blackmun welcomed the new "old number three." On November 12, 1987, the day after Kennedy was nominated, Blackmun wrote to this future colleague whom he had never met, saying: "The 'Old Three Club' is a very special organization, and I am the founder of this organization Judging from the current situation, you fully meet the qualifications of this organization." In less than a year, a new abortion case has reached the Supreme Court.Blackmun's old employer, the Eighth Circuit Court of Appeals, struck down a Missouri abortion law.The law begins with the statement: "Human life begins at conception." It prohibits public institutions from performing abortions, let alone public officials, and stipulates that if a doctor is convinced that a woman is more than 20 weeks pregnant, she can order further prenatal testing.The state of Missouri appealed, backed by the Reagan administration, and they hoped the Supreme Court would use the hearing of the case, known as Webster v. Reproductive Health Services, as an opportunity to overturn " Roy case". “Missouri is like that, always rushing forward with a lot of noise,” Blackmun wrote in the pre-trial memo.The case was scheduled for trial on April 26, 1989.Blackmun was not happy with the complaint filed by the new Bush administration.The complaint cites his 1985 decision in Garcia v. San Antonio Metropolitan Transit Authority, in which BP "under equal circumstances, the Supreme Court' did not hesitate to Ground 'overturned the interpretation of the Constitution in the past," Blackmun believes, "This is definitely a personal attack on me." Blackmun was prepared for the worst.In his "chronology" of this session, he referred to O'Connor, Scalia and Kennedy as "a cabal with Reagan." He then added Rehnquist and White to the list, Suggesting that "these five will unite," he roughly anticipated the verdict before the Missouri case began and began preparing dissents, writing: "Sixteen years on, the confusion caused by the overturning of the 'Roe case' will Same with Prohibition. Thousands of American women and their doctors will be criminals. The Supreme Court will take people back to the dark ages, and countless women will die." In his last paragraph, he dismissed Ocon Naner predicted in the dissenting opinion in the "City of Akron v. Akron Reproductive Health Center" that with the development of medical technology, the viability of the fetus will be further enhanced in the "near future", and the time point of survival will also increase. The meeting moves forward to the time of conception.Blackmun also made a special note in the margin: "Keep it in the text, don't bring it up at the meeting." He intends to continue to wait and see, and will not reveal his position for the time being. "The atmosphere in the courtroom was tense," Blackmun wrote in the transcript of the trial.The results of the discussions at the justices' meeting held two days later were also ambiguous.That said, the Supreme Court remains undecided whether the Webster case should be used to overturn the Roe case. Missouri law is constitutional, there is no need to overturn "Roe" and he does not intend to do so.O'Connor echoed that opinion, saying he would not go too far in the case "in keeping with our past positions". White and Scalia would be happy to see the Roe case overturned, but most don't intend to, and won't push hard.White said he would "add four votes," meaning he would be the fifth vote when four voted to overturn or amend the Roe case.Otherwise, he would have joined Rehnquist in expressing support only for the controversial clause in Missouri law.Scalia also said: "Maybe we don't need to touch this issue in this case." Nevertheless, "I will definitely mention the 'Roy case', and I completely disagree with this judgment." He believes, "Roe The decision in the Iraq case has not had a better impact due to the passage of time, "As long as conditions permit, I will overturn it at any time." The new justice Anthony Kennedy also systematically expounded his views.When he was teaching at the McGeorge Law School in Sacramento, he taught the "Roy case" for 15 years. If he proceeded purely from the principle of "following precedent", he certainly would not trouble this case.However, the judgment in this case is "constantly damaging the image of the Supreme Court, judicial review, and the role of judges." The Supreme Court should "refer this dispute to the legislature and resolve it through democratic procedures." Women's rights will be fully protected there.He suggested "adjusting the thinking and structure of the 'Roy case'" After the meeting, Blackmun calculated that there would be 5 votes in favor of the Missouri law. As for the fate of the "Roy case", it is still unknown. On May 25, the majority opinion penned by Rehnquist was circulated.Although the opinion states that "this case does not involve the 'Roy case,'" Rehnquist makes clear: "We do not see why a state's interest in protecting potential human life should be subject to a developmental stage definition. "If there is a law that "promotes the state's ability to protect potential human life," then it should certainly be maintained. Stevens already stated when discussing the "Webster case" that the court has no reason to touch the "Roy case" judgment, "The White House took the initiative to mention this case, which is an offense to us." Te's comments were very strong. "Women's rights on abortion would be wiped out if a state law was simply justified by whether it 'advances the state's ability to protect potential human life'," Stevens wrote to Rehnquist Said, and sent a copy to the full justices for review. "An abortion tax, or criminalization of abortion, could be justified, by your inferences," he concluded. "As you know, I'm not in favor of overturning 'Roe v. Wade', and if you really want to, I'd like to see you give the case a decent burial instead of recklessly throwing it out of the car outside." Blackmun checked the blank space of Stevens's copy of the letter, but he did not want to argue with Rehnquist any further, and instead proceeded to prepare a dissent that had been conceived six weeks earlier.The draft opinion began: "Today, the majority of the Supreme Court has harmed the people of this country, especially the millions of women who have benefited from Roe v. Wade for 16 years." Again, Blackmun's revised version, after his clerk Edward Lazarus drafted a sharper opening: "Today, the majority of the Supreme Court committed fraud." Although Rehnquist was trying to draft a majority opinion in Webster, he was unable to persuade O'Connor to revisit Roe. On June 23, nearly a month after the Chief Justice's opinion was circulated, O'Connor Nana offered his opinion.She argues that Missouri law is constitutional, but believes that judgment does not conflict with other precedents, including the Roe case. "Only when the constitutionality of a state's abortion statute does matter to the effect of 'Roe' does it warrant reexamination, and it must be done with caution." Scalia was furious.Three days later, he circulated his opinion.He agrees with Blackmun that Rehnquist's opinion would effectively overturn Roe, but thinks it's overdue for the Supreme Court to do so unequivocally.But O'Connor's choice made the "Roy case" miraculously escaped.Blackmun accordingly revised his dissent against Rehnquist. "Today, 'Roe v. Wade' survives, but its future is uncertain," he wrote. In fact, the last paragraph of the dissenting opinion originally started like this: "With the death of the 'Roy case', a legal political revolution is quietly emerging." Now that the "Roy case" has survived, Lazar Strauss suggested the following instead: "Today, the law of abortion is still standing. Today, women in large numbers still have the right to determine their own destiny. Oh, but it is windy and cloudy." Blackmun then revised it in pencil. . On July 3, 1989, Blackmun read out the dissenting opinion in the trial bench, and the last sentence was: "At least the abortion law is still untouched. Even today, the majority of women still have the right to decide their own destiny. But , The ominous omen has gradually appeared, the wind is blowing, and the sky is full of haze." Although the current trial period is over, the momentum of abortion cases has not diminished, and they are pouring into the Supreme Court one after another.The first issue to be dealt with in the new court session is whether parents have the right to interfere with minors' abortion decisions.The Supreme Court debated this issue shortly after the Roe case was pronounced.Early jurisprudence provided that if a state required parental consent for a minor's abortion, courts could offer a "judicial bypass" procedure, that is, as long as the minor could prove to a judge that he was mature enough to do so. A judge can grant her an abortion without parental consent if she makes a responsible decision and abortion is the option that is in her best interest.The new batch of cases that came to the Supreme Court involves some local regulations that do not give parents the right to veto abortions, but require minors to notify their parents or one of them before performing abortions, which is equivalent to "judicial detours" in disguise. "program. Ohio v. Akron Center for Reproductive Health is one such case.A federal appeals court in Cincinnati has ruled an Ohio law that circumvents the "judicial circuitous" process by requiring a parent to be notified of a minor's abortion has been ruled unconstitutional.However, the Supreme Court eventually overturned the appeals court's decision by a 6-3 vote, with Blackmun, Brennan and Marshall on the dissenting side.Kennedy wrote the opinion for the majority of justices.Interestingly, in the last paragraph of his opinion, he put aside the legal analysis and came up with an unusual personal lyric: "In a free and civilized society, every member should maintain a tolerant and sensible understanding of women's choice of abortion. "Her judgment will affect her own destiny and dignity, as well as an embryonic life. The state government is entitled to assume that, for most people, this understanding comes from the family, that is, this The closest bond of society ... if the state government fails to take reasonable steps to regulate the medical profession and ensure that young women receive the guidance and understanding of their parents, it will clearly undermine the dignity of the family." Blackmun believed that Kennedy's judgment was strongly "paternalistic." In his first draft dissent, he specifically referred to that passage, saying that it "has an exaggerated tone, and its purpose is nothing more than to incite a fanatical media, public, and religious people. Dissatisfaction with the 'Webster v. Centers for Reproductive Health Services' adjudicated in one session," he received a letter from Kennedy, June 21, 1990. Blackmun wrote the following day: "Considering how you feel, I will replace 'purpose' with 'result', which may help you, but, of course, I'm not sure if it will. .” In fact, even among the majority justices, O'Connor and Stevens disliked Kennedy's overly personal expression, and they finally refused to sign the judgment.That is to say, although Kennedy received 6 votes for support at the beginning, only four people agreed with his opinion in the end. On July 20, 1990, 84-year-old William Brennan had to announce his retirement because of signs of a stroke. One of Roe's staunchest pole defenders left the Supreme Court. Three days later, President George W. Bush announced his nomination of David Souter, a 50-year-old Republican from New Hampshire, to succeed Brennan.Souter served seven years on the New Hampshire Supreme Court, but he never tried an abortion case or even a few constitutional cases.He was appointed to the First Circuit Court of Appeals just two months ago.But he never had time to take office, let alone sit there and ask questions.Therefore, for all forces, Suter's position is an unknown.Liberals were skeptical and didn't let their guard down until after hearing his testimony during his confirmation hearings.During the hearing, he made no comment on the "Roe case," but expressed support for the "Griswold case" and acknowledged that the principle of "following precedent" is "the basis for the judicial system to achieve the rule of law." Suter is not Brun However, he obviously will not stand on the opposite side of the trend of contemporary constitutional development, so he will not have the same experience as Bork. On October 2, 1990, before the new session of the Supreme Court was approaching, the Senate passed the nomination of Souter with 90 votes in favor and 6 votes against. On October 3, the Supreme Court opened to hear Rust v. Sullivan (Ed. V. Sullivan), a case involving a disguised abortion statute that prohibits employees of federally funded clinics from recommending abortions to patients, even Doctors are not allowed to answer inquiries from patients.The plaintiffs in the case, clinics in New York State and New York City, argued that the regulations, which were not authorized by Congress, violated the free speech rights of clinic employees.In a surprising outcome of the justices' internal meeting, Suter joined a majority of Rehnquist, White, Scalia, and Kennedy in support of the New York state local statute.O'Connor demurred, arguing that funding "cannot be presumed" to be restrictive.Blackmun, Marshall, and Stevens argued that the local statute was fundamentally unconstitutional, but, like O'Connor, Stevens privately saw no need to bring the topic up to the constitutional level.Blackmun proceeded to write a dissenting opinion. The case appeared to be settled, but the verdict was delayed for several months.Although the Rehnquist-authored majority opinion had been circulating since December, Suter did not formally decide to join it until May.His condition is that he hopes that Rehnquist can add an exception to the judgment, stating that universities that receive federal funding will not be restricted by funding.The chief justice followed his advice. The dissenting opinions issued by Blackmun were particularly aggressive in tone."While technically the fundamental right protected by 'Roe v. Wade' has not been affected, the Supreme Court has repeatedly undermined that right by responding to other issues," he wrote. In a paragraph, the judgment of the "Webster case" is quoted: "This will almost directly overturn the effect of the 'Roy case'. If a right cannot be exercised from the beginning, or even blatantly obstructed by the government, it will be completely No rights. I fear this is the result of today's judgment." Stevens tried to warn Blackmun that such a tone might not only be unhelpful but also put colleagues who were already vacillating on their positions at arm's length.He wrote in a private letter: "I think that if we assume that either Sandra or David - which of course they will not both - may overturn the 'Roe case', your strategy may be too Sloppy. Also, I don't think the majority damages abortion rights as badly as you might think, at least as long as a woman can afford the care, she still has the option to have an abortion." Blackmun, however, does not plan to adjust the final paragraph of the dissent strong tone.Ultimately, Marshall joined his dissenting opinion, but Stevens said he would only agree to do so by deleting the last paragraph of the opinion. A month after Ruster v. Sullivan was sentenced on May 23, 1991, Blackmun faced a new blow: Thurgood Marshall announced his retirement. The majority member in the "Roe case" judgment is now only Blackmun.Although he already has a new ally Stevens, whether the right to abortion can be maintained is still uncertain. President Bush nominated Judge Clarence Thomas of the District of Columbia Circuit Court of Appeals to replace Marshall.Thomas is the most famous black conservative in the United States and served as the chairman of the "Fair Employment Commission" during the Reagan era.During the uproarious confirmation hearing, Thomas said he never took a position on Roe v. Wade, even in private.On the day of the hearing, Blackmun's "Important Events" read: "Clarence Thomas Hearing!" However, the focus of the hearing soon shifted from Thomas' judicial position to his personal sex scandal.Anita Hill, Thomas' assistant at the Fair Employment Commission, testified that Thomas had sexually harassed her.Thomas has categorically denied these allegations. On October 15, 1991, after a fierce battle, the Senate finally passed the nomination of Thomas with 52 votes in favor and 48 votes against.It was also the closest number of votes received by a successfully confirmed Supreme Court nominee in the 20th century.Three weeks later, a new abortion case came to the Supreme Court.Based on the current composition of the Supreme Court, the case, Planned Parenthood of Southraetern Pennsylvania v. Gov. Robert P. Casey, will make Roe The case" fell into unprecedented danger. Like other Supreme Court cases, the case at issue is Pennsylvania's abortion control laws.The law, which requires married women to notify their spouses before having an abortion, was declared unconstitutional by the Third U.S. Circuit Court of Appeals in Philadelphia.But the court upheld several provisions that had been opposed by the Supreme Court in the past, requiring women to undergo a 24-hour waiting period for abortions.The Court of Appeals also announced that similar abortion clauses would not be subject to "severe review" by the Supreme Court in the future because less than 5 votes within the Supreme Court agreed to maintain this highest standard of review.The appellate court noted that going forward it would apply the "undue burden" test proposed by Justice O'Connor in City of Akron v. Akron Reproductive Health Center in 1983.In her dissent in Akron, O'Connor argued that states could legislate to restrict abortion even in the first trimester, so long as the statute did not place an "undue burden" on a woman's abortion rights and the state provided "reasonable Based on ".However, according to the "Roy case" judgment, before the fetus enters the viable period, any intervention by the state government is unconstitutional unless it is to protect the health of the pregnant woman. "It's a conceptual regression. The "Roy case" was once again at stake. On October 21, 1991, the Third Circuit Court of Appeals officially announced that pro-abortion organizations could file applications for writ of certiorari by the end of January at the latest.If the Supreme Court takes up the case, it is expected to schedule a hearing in October 1992 and a sentencing in the spring of the following year.但是，堕胎组织决定剑走偏锋，采用一套截然不同的诉讼策略。如果“罗伊诉韦德案”迟早会被推翻，那不如让这一天快点到来，如果加快诉讼进度，就能让案件赶在1992年老布什争取连任的大选前进行，这样就可以让总统大选，变成一次对堕胎权的全民投票。基于上述考虑，原告方用两周时间就搞定了调卷令申请，并于11月7日将其提交至最高法院。这样一来，最高法院很可能将这起案件排在本开庭期内审理。至于大法官们是否会如此办理，只能听天由命了。 1992年1月10日，圣诞假期后的第一次内部会议上，最高法院讨论了这起案件的调卷复审令申请。怀特、斯蒂文斯和斯卡利亚同意受理此案。布莱克门“未置可否”既没有在会上发言，也没有正式投票。他的会议记录上，也没有解释自己为什么要这么做。对他来说，受理这起案件，到底对“罗伊案”是祸是福，一^时很难判断。苏特暂时表态赞成受理此案，但他认为，到底是否受理，还是放到下个星期再做决定比较好。当然，苏特的提议，也给布莱克门的团队敲响了警钟。他的法官助理（不包括他本人）据此认为，堕胎组织的策略或许是对的，必须尽快给“罗伊案”一个说法。要知道，苏特可是老布什任命的，他很可能会尽力拖延此案的受理时间，让案件拖到大选日之后才宣判。 布莱克门的助理斯蒂芬妮·丹杰尔经过认真调查，认为苏特的目的与“首席和奥康纳并不相同”她说，按照苏特的助理彼得·鲁宾的说法，苏特没考虑“大选的事”他只是希望“利用整个暑期的时间，好好思考这个问题”毕竟，兹事体大，关系到“最高法院到底是不是应该推翻'罗伊案'，以决定是否有必要将妇女堕胎的权利视为一项宪法基本权利” 第二次会议前，布莱克门的助理们极力规劝，希望他确保本案不被延期审理。“我们强烈地意识到，这个案子必须在春天审理……”他的助理莫利·麦克优西克写道，“如果您深信现在最高法院已经凑齐足够票数推翻罗伊案，那就让他们在大选前动手吧，由全体女性就这项暴行投票表决。”布莱克门被说服了，他决定批准受理此案。 1992年1月21日，“罗伊案”十九周年前夜，最高法院宣布了受理“凯西案”的决定。这一天，成千上万名反堕胎示威者齐聚华盛顿，350人因围堵当地两家堕胎诊所的人口而被捕。华盛顿的街头暴力与最高法院的静谧肃穆，形成鲜明对比。 4月22日，“计划生育联盟诉凯西案”庭审结束后，大法官照例进行了内部讨论。与三年前的“韦伯斯特案”一样，大家仍不确定，是否应把“罗伊案”列入议事日程。伦奎斯特认为，既然要保留关于“堕胎等待期”和“基于了解基础上的同意”的规定，就必须推翻“阿克伦市诉阿克伦生殖健康中心案”和“索恩伯勒案”伦奎斯特还提出，“配偶通知”条款也是很有必要的，因为“此事与父亲的利益亦密切相关，州有权要求通知配偶”斯蒂文斯认为这类规定简直“难以容忍”奥康纳、苏特也表示反对。布莱克门对判决结果仍无底气，预计自己很可能又要主笔一份异议意见。几天后，他在一份送交全体同僚传阅的备忘录上写道：“当然了，我，估计又得为这些案子写点儿什么了。” 5月27日，伦奎斯特主笔的27页篇幅的多数意见初稿开始传阅。布莱克门在这份意见第一页空白处写道：“哇！真够极端的！”伦奎斯特不但承认宾州法律那些争议性条款有效，还说在“罗伊案”中，“在认定妇女堕胎权为'基本权利'的问题上，最高法院犯了错误”如果伦奎斯特的意见获得多数大法官支持，各州即可随心所欲地限制或禁止堕胎行为，“罗伊案”也将被推翻。 然而，形势很快逆转。两天后，安东尼·肯尼迪发来一封亲笔信： 第二天，两人会面时，肯尼迪透露，他已私下与奥康纳、苏特沟通过，并已达成一致意见，三人正共同起草一份判决意见。这份意见不打算推翻“罗伊案”而是要尽可能拯救它——不是在细节上，而是从实质上拯救。“阿克伦市诉阿克伦生殖健康中心案”和“索恩伯勒案”将被推翻；宾州法律中的“堕胎等待期”和“基于了解基础上的同意”条款将被维持；但“配偶通知”条款会被推翻。判决意见将采纳奥康纳提出的“不当负担”检验标准，以替代“罗伊案”判决中的“三个月规则”不过，堕胎权仍被视为一项宪法权利。 肯尼迪走后，布莱克门在一张最高法院专用粉色便签纸写下这么几个字：“'罗伊案'得救了。”(Roe sound)他选择“sound”这一古词，显得别有深意。对一个法律人来说，这个词传达的不仅有生存之意，而且意味着正当与合法。布莱克门在另一张纸片上，记录了最高法院关于堕胎案的新阵营，一边写着：伦奎斯特、怀特、托马斯和斯卡利亚，一边写着奥康纳、肯尼迪、苏特、斯蒂文斯、X(代表他自己）凭借5票对4票的微弱差异，“罗伊案”得救了。 6月3日，奥康纳、肯尼迪和苏特传阅了他们合作完成的，长达61页的多数意见初稿。斯蒂文斯迅速表态，同意加入意见“绝大部分内容”一周后，布莱克门也将同样的讯息，告知了这三位大法官。与此同时，斯蒂文斯也代表布莱克门，就初稿部分措辞与奥康纳等人进行了磋商。斯蒂文斯指出，如果初稿能删去对“三个月规则”的批评，他和布莱克门会加入意见前三部分，并支持意见的基本原则。三位初稿作者表示同意。随后，意见书第一节中，出现了这样明确有力的表述：“在审慎考虑'罗伊案'解决的宪法基本问题、制度的完整原则，以及'遵循先例'原则之后，我们判定：'罗伊诉韦德案'的实质结论应当维持，并予以重申。”布莱克门读到此处时，在那里打了个勾，并注明：“这句不错！” 尽管如此，布莱克门还是决定说点儿什么。毕竟，下级法院今后判案时，很可能援引新判决的观点。他写道，最高法院内部的分歧意见，有时悬殊得“如同两个世界”“但从另一个角度看，二者的距离有时也不算太远，只相差一张选票罢了”他继续感慨：“我已经83岁了，不会永远留在最高法院。我离开后，决定由谁作为我的继任者的程序，肯定将围绕今天的议题展开。遗憾的是，最终的选择，仍会在两个截然相反的世界间进行。” 1992年6月29日，“罗伊案”19年后，也是布莱克门在“韦伯斯特案”的异议意见中感慨“阴风阵阵，满天阴霾”之后的第三个年头，一场风波终于悄悄落幕，“罗伊案”再次安然无恙。未来或许会有更多鏖战，但应该轮到别人持枪上阵了。布莱克门知道，自己不会在最高法院待太久了。总统大选日那天，他在“重要大事记”上写下：“现在，哈里还能做些什么呢？”

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