Marshall papers recall abortion ruling discord Justices nearly reversed '73 call

May 24, 1993|By New York Times News Service

WASHINGTON -- The papers of Thurgood Marshall, the lat Supreme Court Justice, show that Roe vs. Wade, the 1973 ruling that established a constitutional right to abortion, was nearly overturned in a 1989 case with three justices proposing a dissent saying, "Roe no longer survives," according to a news article yesterday in the Washington Post.

The attack on the abortion-rights ruling, led by Chief Justice William H. Rehnquist, centered on a case involving a Missouri law that imposed restrictions on women seeking abortion.

But in the waning days of the court's term, Justice Sandra Day O'Connor would not accept Justice Rehnquist's sweeping language. As a result, a majority upheld the Missouri law, but without overturning Roe.

The papers also provide powerful insights into the justices' personal views on the most fractious issues facing the country in the last decade, through the words of the Justices themselves, in their draft opinions and correspondence to one another.

The Post obtained access to the papers, which Mr. Marshall, who died in January at the age of 84, gave to the Library of Congress after his retirement from the court in 1991. The material consists of more than 173,000 items, mainly written documents from his years at the court.

The publication of the articles has upset Cecilia Marshall, the justice's widow, said Karen Hastie Williams, a lawyer who is a goddaughter of the late Justice.

"It is Mrs. Marshall's belief that he never intended to release his papers in the lifetime of any justice on the court with him," said Ms. Williams. "Originally, he was going to burn the papers."

Ms. Williams added that it was James H. Billington, the Librarian of Congress, who persuaded the justice to give the material to the library.

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