Why conservative Justice Potter Stewart joined the majority in Roe v. Wade

Conservative Justice Samuel Alito, in his leaked draft opinion, writes that Roe v. Wade was egregiously wrong from the beginning. In doing so, he disagrees fiercely with the three conservative justices — all nominated by Republican presidents — who formed part of the majority for the landmark 1973 ruling. Those three justices were Warren Burger (appointed by Richard Nixon), Lewis Powell (Nixon) and Potter Stewart (Dwight Eisenhower).

I served as a law clerk to Justice Stewart from 1970 to 1971, shortly before Roe was decided. He served on the U.S. Supreme Court from 1958 to 1981 and was considered consistently conservative. He was in no way a judicial activist and clearly understood the difference between being a judge and being a politician. He even described his politics to me in terms that evoked an earlier century, saying that he considered himself a Whig in the spirit of Edmund Burke, the 18th-century philosophical founder of conservatism.

During my clerkship, we saw eye to eye. At law school, my friends had described me as “Old Law and Order,” so I fit right in. I am thus in a good position to describe Justice Stewart’s reasoning as set forth in his concurring opinion in Roe v. Wade in lay terms, so that readers can judge whether he was egregiously wrong.

Justice Stewart begins with a discussion of what lawyers call substantive due process, which is denied when a “statute substantively invad[es] the ‘liberty’ that is protected by the Due Process Clause of the Fourteenth Amendment” to the U.S. Constitution. He describes it as “a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment.”

Justice Stewart next turns to the meaning of the word “liberty.” He quotes a sentence from his opinion in an earlier case: “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” He then notes that the Constitution nowhere mentions a right of personal choice in matters of marriage and family life, but points to 10 leading cases where the Constitution was held to protect rights not specifically mentioned in the Constitution but [which] fall within the meaning of “liberty.”

He then explains why a right protected as a liberty of the people may be novel, rather than required, as Justice Alito now contends, to be “deeply rooted in our Nation’s history and traditions.” Stewart quotes Justice Felix Frankfurter, who wrote, “Great concepts like … ‘liberty’ … were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”

Stewart then explores precedent. He points to several cases establishing that “personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” He agrees with a lower court that “the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child” are of far greater magnitude than interests protected as liberties by earlier cases.

Finally, he considers whether the abortion statute at issue in Roe v. Wade can survive the strict scrutiny required when a state statute is alleged to abridge a protected liberty of the people. The asserted state interests “are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her.” Stewart concludes that the absolute ban of the statute before the court could not be justified by these interests as shown in Justice Harry Blackmun’s opinion for the court.

Importantly, Justice Stewart makes no claim that the fetus is an unborn child. His use of the words “potential future human life” makes that clear. This is not so in the dissent of Justice Byron White. He speaks of protecting “life.”

The theological doctrine that life begins at conception is even more dominant in Justice Alito’s draft opinion. He claims that his rule that a liberty must be deeply rooted in history will not require overruling cases protecting same sex marriage, interracial marriage, and the use of contraception because the case before him involves the protection of life. This makes protection of life beginning at conception the true rationale for his opinion.

Justice Alito’s draft opinion is wrong on three counts. It fails to protect adequately and in accordance with precedent the liberty interests of women secured by the Constitution. It overturns settled law without nearly adequate justification. Finally, it makes debatable religious dogma a ground for limiting secular rights. The result is disturbing and begs the question: Which justice is egregiously wrong?

Evan A. Davis, an attorney, is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).