In 1989 I argued before the U.S. Supreme Court in Webster v. Reproductive Health Services, a case challenging a Missouri statute that forbade the use of any state funds or facilities for the conducting of abortions. On behalf of the United States I argued that Roe should be overruled, except in extreme cases such as when the life or health of the pregnant woman was at risk. I made these points in good conscience, drawing on a mix of history, precedent and what I saw as the interests of the rule of law.
I was a law clerk to Justice John Marshall Harlan II in 1961 when he dissented in Poe v. Ullman, a case involving the liberty of married couples to use contraceptives without interference or inquiry by the government, and provided what I then considered — and still do — the foundation of the law of privacy and personal dignity.
Abortion implicates not only those liberties of the pregnant woman but also, in the opinion of some, the life of another person, the fetus. Although personally agnostic on that issue, I did not see how the Constitution provides a principled basis for answering the question. That Roe was a poorly reasoned extrapolation from the contraceptive cases was a position taken by many constitutional scholars, including John Hart Ely, Paul Freund and Archibald Cox. As Justice Ruth Bader Ginsburg correctly predicted in a later talk at New York University, it was a leap that would shadow the law for decades to come. Perhaps better to have left it to legislation and the development of public opinion.
In 2005, testifying in favor of the confirmation of John Roberts as chief justice, I said that I thought he was too good a lawyer — a conservative in the manner of Edmund Burke and John Harlan, not a reactionary — to vote to overrule Roe. Senators Arlen Specter and Dianne Feinstein reminded me that I had argued the opposite about Roe 16 years before in the Webster case. My answer then, as now, is that the law had changed since 1989. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, a joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy and David Souter reaffirmed the central holding of Roe and put it on a firmer constitutional basis: the dignity and autonomy of the pregnant woman and the equal rights of women more generally.
Since that time, Casey had been cited and used as a basis of constitutional reasoning in many decisions in many areas of the law, including gay rights and the parental rights of a surviving parent. The decision has not only taken root; it has flourished and ramified.
To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.
When I argued Webster and made the case that overturning Roe would not undermine the broader foundation of privacy, I learned a lesson in the use of metaphor. Seeking to invoke my mentor John Harlan, I said I was not urging the unraveling of the whole fabric of substantive due process and unenumerated rights, but only to pull this one thread. To which my opponent replied that in his experience every time he pulled a thread on his sweater, the sleeve fell off.