“Blackmun's Roe v. Wade Was Almost Overturned” (March 28-April 3) told how the 1992 Supreme Court case Planned Parenthood v. Casey nearly overturned the case that legalized abortion.

Many people don't know that the original Roe case was nearly dismissed. When Notre Dame law professor Douglas Kmiec reviewed the papers of another of the Roe justices, Justice Thurgood Marshall, he found that Justice William Douglas saw abortion as an extension of his 1965 [Griswald vs. Connecticut] opinion invalidating a Connecticut law limiting the use of artificial contraception.

The papers show that the Roe justices could not agree about what method of analysis to apply or even agree on a position clear enough to take a vote in conference.

Blackmun suggested the court declare the Texas law prohibiting abortion vague and dismiss the case. Because new members came onto the court after Roe v. Wade's original argument, the case was reargued. Douglas arranged a consensus, because he didn't want to risk losing his majority on re-argument.

Blackmun wrote that this case was decided with “arbitrary” rationale. It was not discernment of the law of the land but arbitrary choice that accounted for the result in Roe.

Kmiec learned that none of the justices claimed there is a specific textual guarantee of abortion to be found anywhere in the constitutional document. He said the internal drafts acknowledge that the abortion claim finds no legitimacy within the background principles of common law, out of which the Constitution emerged.

COLLEEN REILLY

Lebanon, Pennsylvania