218 Politics and the judiciary
Court, in a time of crisis, reasserted the nature of limited government in the
United States, and its own authority to set limits to presidential power. The
president immediately returned the mills to the owners; the men went on
strike and remained out for seven weeks.
Roe v. Wade, 1973
Few social issues are more contentious than the role of government in the
control of abortion, and it is perhaps surprising that it was the Supreme
Court under the relatively conservative Chief Justice Warren Burger that
moved into this political minefield, and in a way which dismayed conserva-
tives. Until 1973, the control of abortion remained almost exclusively in the
hands of the governments of the states. Some states, such as Massachusetts
and Connecticut, had straightforward prohibitions on all abortions. In the
majority of the states, there were restrictive laws that limited legal abor-
tions, either to situations in which the mother’s life was in danger, or to a
very limited list of other circumstances. Two such laws, those of Texas and
Georgia, were challenged in the courts, and in 1973 in the case of Roe v. Wade
the Supreme Court by a majority of seven to two handed down a decision
which profoundly changed this aspect of American life.
The Court ruled that the Fourteenth Amendment to the Constitution
conferred on women a right of privacy that could be encroached upon by
government only when other policy considerations became, in the eyes of the
Court, sufficiently significant to limit that right. Justice Blackmun, a Nixon
appointee, delivered the decision of the Court. He ruled that state govern-
ments had no right to prohibit abortions during the first three months of
pregnancy. In the second three months, the state might intervene to make
rules, principally with the intention of protecting the woman’s health, but
in the final ten weeks of pregnancy the state ‘may go so far as to proscribe
abortion... except when it is necessary to preserve the life or health of the
mother’. Thus the laws of Texas and Georgia, and of forty-four other states,
were ruled unconstitutional. The states could pass new legislation on abor-
tion, provided that the new laws were consistent with the Court’s ruling.
The most remarkable aspect of Roe was that the Court’s opinion was not
based on a long exposition of the history of the right to privacy, and its rela-
tion to abortion. The right to privacy had itself been invented by the Court
only eight years earlier in Griswold v. Connecticut, a case involving a state stat-
ute which aimed to prohibit the use of contraceptives by married couples!
There was no other case law on which to base the decision of the majority
of the judges of the Supreme Court. Justice Blackmun’s opinion in Roe was
notable, in Robert McKeever’s words, for ‘its concern for the detailed balanc-
ing of what it perceived as the different interests involved’, and resembled
therefore the kind of compromise that normally emerges from the legislative
process. It certainly is true that the pluralistic struggle that characterises the
working of the Congress and the administration has come also to play a part