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Will Coverage of Blackmun Papers Revive Media Myths About Roe v. Wade?

Mar 3, 2004 | Press Resources

Myths discussed in this memo:  (1)  The “first trimester” myth. (2) The “Court is now split 5-4 on Roe” myth.  (3) The “overturning Roe bans all abortion” myth. (4) The “public supports Roe” myth.  (5) The “Blackmun shot at” myth.  For further information or interviews, send e-mail tomediarelations@nrlc.org or call 202-626-8825.

WASHINGTON — On March 4, 2004, the papers of the late U.S. Supreme Court Justice Harry A. Blackmun will be opened to the public.  Reporters for The New York Times and National Public Radio were given access to the papers as of January 1, so their initial reports are expected to be the most extensive.

The National Right to Life Committee (NRLC) will have spokespersons available to respond to any reporting dealing with Blackmun’s authorship of Roe v. Wade or other abortion-related issues.

“The 1979 book The Brethren, by Bob Woodward, Scott Armstrong, and Al Kamen, based on interviews with Supreme Court justices and clerks, and the papers of Justice Thurgood Marshall released in 1993, have already painted a detailed picture of how seven Supreme Court justices imposed the legalization of abortion,” said NRLC Legislative Director Douglas Johnson. “We expect that the Blackmun papers will further flesh out the story of how seven justices took it upon themselves to operate as a super-legislature, effectively amending the Constitution in order to achieve the policy result they desired, which was legalized abortion on demand.  They negotiated over the scope of the right that they were inventing, and then argued over what language in the Constitution they could use to justify their policy.  The memoranda between justices that were released with the Marshall papers read like memos among the staffers on a congressional committee, drafting a statute.”

In the hope that coverage of the Blackmun papers will not result in renewed propagation of some persistent myths about Roe v. Wade and about Justice Blackmun, NRLC offers the following observations and documentation.

(1)  THE ‘FIRST TRIMESTER’ MYTH

The myth that the “right to abortion” enunciated in Roe was limited in some meaningful way to “the first trimester” has long since been repudiated by most mainstream news organizations, and by the Supreme Court itself.  Still, this myth reemerges periodically. It appeared twice in theWashington Post on January 23 of this year (a correction was published).  In an advance piece on the Blackmun papers, Sharon Schmickle of the Minneapolis Star-Tribune wrote that Roe “bars the government from interfering with a decision whether to bear a child or abort during the first trimester of a pregnancy.”  (Feb. 25, 2004)

Any “summary” of Roe that incorporates such a “first trimester” formulation is gravely misleading. In reality, in the Roe original decision (and the companion decision issued the same day, Doe v. Bolton), and in many subsequent decisions, the Court made it clear that abortion had to be allowed FOR ANY REASON through “viability.”  The original ruling left the door open for minor regulations to protect women’s health during the second trimester, but it was clear from the language of the original decision that these regulations could not amount to much (beyond requiring adequate equipment, etc.), and certainly could not be used to restrict the REASONS for which abortions could be sought or performed.

Washington Post reporter looked at this issue closely and published a cogent report on the realRoe, published September 17, 1996, which concluded as follows:

< The landmark Supreme Court decisions Roe v. Wade and Doe v. Bolton, decided together in 1973, permit abortion on demand up until the time of fetal “viability.” >

The Post report went on to explain that even after “viability,” the Court said that states could not restrict abortion sought for reasons of “health,” defined to include “all factors — physical, emotional, psychological, familial and the woman’s age — relevant to the well-being of the patient.” The Post concluded, “Because of this definition, life-threatening conditions need not exist in order for a woman to get a third-trimester abortion.”

The “first three months” formula was formally declared erroneous in the early 1980s by senior news executives of The New York Times, the Associated Press, and others.  The Times, for example, decreed in 1982 that “brief references to the Supreme Court’s 1973 decision on abortion should say simply that the court legalized abortion,” because “the phrase ‘in the first three months of pregnancy’ might be incorrectly interpreted to mean that abortions in the last six months of pregnancy remain illegal.”  This document, the Washington Post story quoted above, and other similar documents are posted here:
http://nrlc.org///abortion/pba/roevwademyths.html

It should also be noted that in the 1992 Casey ruling, the Supreme Court reaffirmed Roe v. Wade on a vote of 5 to 4.  The Court explicitly repudiated any distinction whatever between the first and second trimester, writing, “We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.”

Moreover, in the 2000 Stenberg ruling, the Supreme Court struck down Nebraska’s ban on partial-birth abortions, a method used in the fifth month and later — never during the first three months.  The five-justice majority said that such a ban was inconsistent with Roe v. Wade.

(2) THE “COURT NOW SPLIT 5-TO-4” MYTH

Certain pro-abortion advocacy groups have attempted to propagate the myth that the current Supreme Court is divided 5 to 4 on Roe v. Wade.  Many reporters have carelessly adopted this assertion as fact without thinking about it.  For example, a Gannett News Service story distributed late last year asserted: “A Bush appointment to the Supreme Court could provide a majority that would vote to overturn the court’s 1973 decision in Roe v. Wade that legalized abortion.”  (“Abortion Fight Looms in Washington,” by Pamela Brogan, September 28, 2003).

NRLC believes that Roe v. Wade was an act of judicial legislation and should be overturned.  Therefore, it would be welcome news if in fact “only” five justices supported Roe.

Regrettably, however, it is not true.  Six current justices have voted to affirm Roe v. Wade:  Justices Breyer, Ginsburg, Kennedy, O’Connor, Souter, and Stevens.  Only three of the current justices have ever voted to overturn or substantially scale back Roe: Justices Rehnquist, Scalia, and Thomas.

In order to assert that a single appointment could overturn Roe, Gannett and others had to count Justice Anthony Kennedy as a supporter of overturning Roe v. Wade.  But in the real world, Justice Kennedy in the 1992 Casey ruling voted to reaffirm Roe and to allow abortion for any reason up to “viability.”  If Kennedy had voted to overturn Roe, it would have been overturned, 5 to 4. but since he voted to support Roe it was reaffirmed, 5 to 4.  Since then, one of the four anti-Roe justices, Byron White, was replaced by a pro-Roe justice, Ruth Bader Ginsburg, producing a current court that favors Roe by 6 to 3.

In the 2000 Stenberg decision, Justice Kennedy voted to uphold Nebraska’s ban on the partial-birth abortion METHOD as allowable under Roe and Casey. In that case, Kennedy did not retreat from his 1992 reaffirmation OF Roe as guaranteeing legal access to abortion for any reason up to “viability.”  Professor Jeffrey Rosen of George Washington University Law School, who identifies himself as a “pro-choice critic of Roe,” has said, “Justice Kennedy said nothing in Stenberg to suggest that he was backing away from his position in Casey, reaffirming Roe.  And of course there’s no more dramatic confirmation of this than his expansive decision in the 2003 ruling in Lawrence v. Texas, the sodomy case, where he specifically reaffirmed the broadest possible reading of Casey.”

In short, Justice Kennedy regrettably but demonstrably supports a right to obtain an abortion for any reason up to “viability.”  Yet, for the purpose of manufacturing a 5-to-4 split, Gannett (among others) counts Kennedy as a vote to overturn Roe, merely because he voted to uphold a ban on partial-birth abortion.  If Kennedy is transformed into a foe of Roe merely because he voted to uphold the ban on partial-birth abortion, then it should logically follow that 68% of the public also opposes Roe, since that is the percentage that favors a ban on partial-birth abortion.

In the hands of some journalists, the words “Roe v. Wade” seem to be made of elastic, their meaning expanding or contracting drastically, even within the same news article, depending on what point is being made.

(3) THE “OVERTURNING ROE BANS ALL ABORTION” MYTH

The maximum possible effect of the Supreme Court “overturning” Roe would be to allow elected legislators to enact protective legislation to the degree desired by those who elect them.  Even the complete overturning of Roe v. Wade would not ban any abortions without statutes, much less all abortions, although even this basic fact is often misrepresented implicitly or explicitly in press accounts, and certainly in the polemic of pro-abortion advocacy groups.

(4)  THE “PUBLIC SUPPORTS ROE V. WADE” MYTH

Typically when pollsters ask about support for “Roe v. Wade,” a majority says they support it — especially in polls in which the pollster actually incorporates the “first three months of pregnancy” myth into the question, as some still do.  However, when the same pollsters and others ask respondents what restrictions on abortion they favor, they typically find that a majority supports limiting abortion to a few hard cases.  When pollsters ask specifically about limiting legal abortion to cases of rape, incest, or life of the mother (President Bush’s position), they typically find majority support for that position, with a greater majority among women than men.

Lopsided majorities also endorse other specific restrictions that the current Supreme Court majority says are incompatible with Roe.  For further discussion, see
http://nrlc.org///news/2003/NRL02/osteen.html

A large poll of WOMEN only conducted in 2003 by the Center for the Advancement of Women, an organization headed by Faye Wattleton, the former president of the Planned Parenthood Federation of America, which found a majority of American women identified with the pro-life side.  Also, in this women-only poll, 51% took combined life-rape-incest-only positions, another 17% favored greater limits than now, and only 30% said “generally available.”  A copy of this poll is available on request from NRLC.  Also, see: http://nrlc.org///news/2003/NRL07/more_signs_of_a_pro.htm

On January 23, 2003, the Washington Post reported, “A new Washington Post-ABC News Poll found majority support for the ruling in Roe v. Wade [mischaracterized in this poll as legalizing abortion “during the first three months of pregnancy”], but also showed that opposition to the decision has risen since the 20th anniversary in 1993.  In the poll, 54 percent of those surveyed said they favored the Supreme Court ruling that legalized abortion, with 44 percent opposed.  Ten years ago, 65 percent favored the ruling, with 33 percent opposed.”  (“Democratic Candidates Vow To Protect Abortion Rights,” by Dan Balz, Washington Post, Jan. 22, 2003, www.washingtonpost.com/wp-dyn/articles/A25818-2003Jan22.html

(5) THE “BLACKMUN SHOT AT MYTH”

Justice Blackmun was a controversial figure. When he died five years ago, some news media, including NBC News, included as an example of animus toward Blackmun a shot that penetrated a window of his apartment.  This is another myth.  A bullet did pierce a window of Blackmun’s third-floor apartment in Rosslyn on February 28, 1985, lodging in a chair. But after a thorough investigation, the FBI concluded, “We found no evidence of a deliberate attempt on the life or well-being of Justice and Mrs. Blackmun.” (Washington Post, January 13, 1986)

The New York Times reported (March 7, 1985), “The ballistic investigation, completed within hours after the incident, was said to have traced such a steeply descending trajectory from the Blackmuns’ window to the chair that the shot would have had to have traveled a distance too great to have been aimed.”

In other words, someone at a very great distance, probably across the Potomac River, fired a handgun high into the air, and the descending spent bullet happened to fall through the window of the third-floor Blackmun apartment.

Despite the FBI’s widely reported conclusion, the Blackmun-shot-at myth has been repeated in much more recent news reports.  Example: In her introduction to an interview with Blackmun, NPR’s Nina Totenberg reported on December 28, 1993, “His life has been threatened, a bullet fired through his living room window.”

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