Supreme Court of the United States

Washington, D.C. 20543

CHAMBERS OF

JUSTICE HARRY A. BLACKMUN

November 21, 1972

MEMORANDUM TO THE CONFERENCE

Re: No. 70-18 - Roe v. Wade

Herewith is a memorandum (1972 fall edition) on the Texas abortion case.

This has proved for me to be both difficult and elusive. In its present form it contains dictum, but I suspect that in this area some dictum is indicated and not to be avoided.

You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.

I have attempted to preserve Vuitch in its entirety. You will recall that the attack on the Vuitch statute was restricted to the issue of vagueness. 402 U. S. at 73. I would dislike to have to undergo another assault on the District of Columbia statute based, this time, on privacy grounds. I, for one, am willing to continue the approval of the Vuitch-type statute on privacy as well as on vagueness. The summary here attempts to do just that. You may not agree.

I apologize for the rambling character of the memorandum and for its undue length. It has been an interesting assignment. As I stated in conference, the decision, however made, will probably result in the Court’s being severely criticized.

Sincerely,

H. A. B.