Five decades ago, Jim Ziglar witnessed the milestone Roe vs. Wade decision takes shape within the rooms of the Supreme Court.
“It was so surreal,” he said. «Simply incredible.»
In 1972, Ziglar was a recent law school graduate who had secured a year-long internship for Judge Harry Blackmun, the eventual author of the landmark decision that legalized abortion across the country.
In interviews with NBC News, Ziglar, now 77, and four others who served as high court clerks during the 1971-1972 and 1972-1973 terms, when Roe was argued and decided, said they knew the case it was important but they couldn’t fathom exactly how historic and divisive it would become.
“I never dreamed for a moment that 50 years later, Roe would still be so controversial,” said Ziglar, a Washington lawyer who in the span of a long career served as US Senate sergeant-at-arms, deputy secretary of the Interior in the Reagan administration and commissioner of the Immigration and Naturalization Services under President George W. Bush. «And more importantly, I didn’t realize that abortion was going to be what would make American politics one-issue politics.»
George Frampton, who worked for Blackmun a year before Ziglar, described how abortion at the time was seen as more of a health issue than a women’s issue.
“Most people forget that when these cases reached the Supreme Court, the abortion reform movement, which drove the litigation, was basically a very masculine establishment, a conservative movement promoted by the American Bar Association and the American Medical Association. American, traditionally not very progressive or left-wing groups to decriminalize abortion,» Frampton said.
Roe was a ruling that would significantly affect the nation’s women, but when the case was decided, there were virtually no women working the chambers.
John Rich, who was Blackmun’s clerk during the 1971-1972 session, said there was «only one clerk» out of about 30 during his year on the Supreme Court, adding that «it seemed archaic to us, but it wasn’t surprising.» . at the time.»
Working with Blackmun, Frampton recalled how she used to take notes over the phone when the judge called from Minnesota, where she spent weeks at the Mayo Clinic, her former employer, researching the medical details of the abortion. Blackmun, Frampton said, «really wanted to become an expert on the history of abortion and the history of abortion law.»
Shortly after Roe was argued in 1971, it became clear that most of the justices on the court, even conservative ones, were in favor of legalizing abortion, Frampton continued. But when then-Chief Justice Warren Burger decided to delay Roe until the next term, as two outgoing justices were replaced by William Rehnquist and Lewis Powell, many on the court feared crucial votes could evaporate.
“The law clerks and many of the judges were terribly upset because they thought the chief justice was trying to turn the case around by getting two new judge nominees from President Nixon, and perhaps convincing Justice Blackmun to change his mind,” Frampton said.
«It was not clear that Justice Blackmun and those who wanted to find that there was constitutional code protection for abortion would stick with a majority.»
Richard Hoffman, who clerked to Justice Byron White during the 1972-1973 term, said the arguments he had in chambers with White in the months leading up to the decision grew heated as White worked to determine whether the court should legalize abortion. or whether to let the states decide.
“In fact, I had a final meeting with him just as he was making up his mind. And we yelled at each other. Our voices were raised because of our disagreement, but he encouraged that,» Hoffman said.
To blow off steam in those tense months, White, a former professional football player, encouraged his paralegals to play basketball with him several days a week at a courthouse located inside the Supreme Court building.
«Richard and I were playing Justice White on what was called the highest court in the land because it was a basketball court above the Supreme Court courtroom,» said Rhesa Barksdale, who was White’s clerk during the 1972 session. -1973.
On January 22, 1973, Roe was decided in a 7-2 vote, with White and Rehnquist disagreeing. Barksdale, who described White as an «excellent and circumspect judge,» said he believes White’s decision to dissent stemmed from his belief in giving the majority a voice: «He was a firm believer that the court shouldn’t necessarily decide what the majority of the people should decide, and he expressed it in his dissent”.
An impassioned public response followed the decision, with letters reaching the Supreme Court in droves, some containing death threats.
Half a century later, the Supreme Court voted to overturn its Roe decision in June 2022, when the issue had become one of the most contentious in the country. In the majority opinion that struck down the constitutional right to proceed, Justice Samuel Alito wrote that the court’s initial decision in Roe had «unleashed a national controversy that has embittered our political culture for half a century.»
While sitting justices have faced immense public backlash for striking down the right, Rich recalled that 50 years ago, most of the hate mail was directed at Blackmun after he wrote Roe’s majority decision. “Bags and bags of mail were coming in,” he said.
And for a while, Blackmun «insisted» on reading every letter, Ziglar said. “It had such an unfavorable impact on him. He was beaten.
«And finally an employee said, ‘Your Honor, you have to stop reading this stuff.'»