Blackmun's papers detail Roe v. Wade workings

WASHINGTON -- In the spring of 1992, Supreme Court Justice Harry A. Blackmun, the author of the Roe v. Wade opinion two decades earlier, found himself a bystander as the justices debated whether to overturn the right to abortion.

The 83-year-old justice knew the opinion was in danger, but he did not learn the story of its unexpected rescue until it was all over, according to papers released yesterday by the Library of Congress.

"I'm not so sure that I can tell you how it came about," Blackmun confided to a clerk afterward. "I think they probably kept it to themselves," he said of his colleagues.

The early 1990s fight was one of the most dramatic in the recent history of the Supreme Court, yet Blackmun's papers add little to what has been already known -- that a surprise defection by Justice Anthony M. Kennedy had helped preserve Roe v. Wade.

Presidents Reagan and George H.W. Bush, opponents of abortion, had added five new appointees to the Supreme Court between 1981 and 1991. They joined the two original Roe dissenters: Justices Byron White and William H. Rehnquist, who by 1992 was the chief justice.

Roe v. Wade looked to be doomed, or so Blackmun thought. "A chill wind blows," he intoned in a dissent after the majority had upheld a Missouri antiabortion law.

In late April 1992, the high court took up a Pennsylvania case that challenged a series of new regulations, including a requirement that women consult their spouses before obtaining an abortion. Separately, Louisiana and Utah had enacted laws that would forbid nearly all abortions.

When the justices met in a closed-door conference, all but Blackmun agreed to uphold most or all of the Pennsylvania regulations. But the surprise came when the majority explained why.

Rehnquist began work on an opinion that said women did not have a true right to choose abortion. States were free to limit this right to protect potential human life, he said.

This approach had been suggested by the first Bush administration's solicitor general, Kenneth W. Starr. White and Justices Antonin Scalia and Clarence Thomas agreed. They thought the Roe decision was wrong and should be overturned at once.

Justices Sandra Day O'Connor and David H. Souter were not prepared to go that far, however. They began work on a separate, concurring opinion that would uphold "the central holding of Roe," which gave women a right to choose abortion without "undue" interference from the government.

And to their surprise, Kennedy said he agreed with their approach. Although personally and morally opposed to abortion, Kennedy believed that the Constitution's protection for liberty left this choice with individual women.

Kennedy's defection proved to be momentous. Suddenly, the majority on the most disputed question of constitutional law had shifted. Justice John Paul Stevens, a strong supporter of the right to an abortion, learned of the newly formed "troika," as the clerks called the O'Connor-Souter-Kennedy alliance. Stevens agreed to sign on to most of their opinion.

Blackmun was nearly the last to learn. On May 24, Kennedy sent him a hand-written note saying he had some "welcome news" for him.