Whether women have a constitutional right to abortion will be a major, heated issue at all levels during the 2024 election season. It was Chief Justice Warren E. Burger’s court in 1973 that found such a right, in Roe v. Wade, with Justices William Rehnquist and Byron White dissenting. I worked with “the Chief” — that’s what those close to Burger called him — for nine years and four months until his death in 1995. He called me his “chief of staff.” I knew him exceptionally well, to the point that he would confide in me on certain matters.
In November 2000, I published a book on the Chief, With Sweet Majesty, Warren E. Burger, conveying much that the public did not know. Mine is the only biography ever published on the Chief, issued in a limited edition by the Trust for the Bicentennial of the United States Constitution after his death. Burger would not permit a biography to be written, but I could do so after his death because of my personal materials and notes from him.
As I wrote in my book:
He objected to abortion for minors who sought to have it without parental consent. He offered the analogy of a teenager not being able to get her tonsils out without parental consent, yet being able to have a fetus removed without that same consent. This made logically no medical sense to him. He sided with the majority in Roe v. Wade, but told me that he thought Roe v. Wade ought to be reheard by the Supreme Court. Though he joined with the majority, he was always quick to point out subsequent written dissents. He stated that he did not intend Roe v. Wade to be unmitigated abortion on demand.
At the Chief’s memorial tribute, then–Solicitor General Drew Days noted:
In 1973, [Burger] joined in the Court’s landmark Due Process opinion in Roe v. Wade, a decision that was to become one of the most controversial in the Court’s history. In a separate concurrence, however, he warned against reading “sweeping consequences” into the holding, emphasizing that it did not advance the idea that the Constitution required abortion on demand. In a dissent some years later, he was to express misgivings about the Roe decision, fearing that it had paved the way for the Court to go beyond the limits commanded by the Constitution.
Days quoted Burger’s later dissent — and note this bombshell:
Every Member of the Roe Court rejected the idea of abortion on demand. The Court’s opinion today, however, plainly undermines that important principal, and I regretfully conclude that some of the concerns of dissenting Justices in Roe, as well as the concerns I expressed in my separate concurrence, have now been realized.
Judge Robert Bork clarified a major misunderstanding at this same memorial tribute:
It is always a little more difficult to assess a Chief Justice’s work because, when a majority he disagrees with has the votes, with or without his vote, he may join that majority in order to assign the opinion and limit the damage to the law. Some of Warren Burger’s votes that have been described as liberal activism are due to that tactic.
There you have the powerful punchline worth repeating from the chief justice who was there with the Supreme Court and its Roe decision in 1973: “Every Member of the Roe Court rejected the idea of abortion on demand.”
So, in 1973, Chief Justice Warren Burger and his colleagues were already on the path to opposing abortion on demand, a path that Justice Samuel Alito more fully explored in 2022, when the court overturned its pro-abortion rulings. The 1973 Supreme Court justices knew not what they had launched, all being against abortion on demand. The later court would correct that oversight.
How did what happened in the Supreme Court of 1973 relate to the court’s decision in 2022? It did so in a very direct way: The court in 1973 believed unanimously that abortion should not be on demand — but it became on demand in public. This public aberration became the driving force for the Roe decision to be reheard by the court in 2022, led by the due diligence of Alito, who cited the 10th Amendment and states’ rights to determine access to abortion. From 1789, the Supreme Court’s launching, to 1973, there was no constitutional right to abortion. During these 184 years, 105 justices served the court. In 2022, the court returned to that ante.
Ronald L. Trowbridge, Ph.D., is a policy fellow at the Independent Institute in Oakland, California. He was appointed by President Ronald Reagan to the United States Information Agency and later became chief of staff for U.S. Chief Justice Warren Burger.
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