Planned Parenthood of Southeastern Pennsylvania v. Casey was argued on April 22, 1992. Justice O’Connor awoke at 4:15 A.M. in “real pain,” John recorded. “She began shaking like a leaf and continued to shake for 5 to 10 minutes.” She was up by six and on her way to the Supreme Court. The immediate cause of her pain was a back injury, but she was also feeling the accumulated stress of too many years in the eye of the abortion storm. At the time of the Webster case, two leading feminist lawyers, Susan Estrich and Kathleen Sullivan, had authored a widely read, passionate defense of Roe v. Wade entitled “Abortion Politics: Writing for an Audience of One.” The one, as the legal and political world well understood, was Justice O’Connor.
The lawyer arguing to strike down the Pennsylvania abortion restrictions, Kathryn Kolbert, representing Planned Parenthood, adopted a radical strategy. She wanted to force the court to either affirm Roe outright—or reverse it. With polls showing that most people supported a woman’s right to choose, Kolbert was playing politics. Assuming that the Court reversed Roe, the pro-choice movement planned to make abortion rights a central issue of the 1992 Presidential campaign.
Justice O’Connor was irked by Kolbert’s all-or-nothing argument. Asking the first question, her flat voice radiating thinly disguised annoyance, O’Connor stated, “Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe against Wade in all its aspects. Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?”
At the conference, Chief Justice Rehnquist counted five votes to reverse Roe—his own, along with the votes of White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas—and assigned himself the Court’s opinion. Justice Blackmun, Roe’s author, was near despair. Then, on May 29th, Blackmun received a letter from Justice Kennedy. “Dear Harry,” it began, “I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.”
The “welcome news” was that three Justices—Kennedy, David Souter, and O’Connor—had been meeting secretly to save a woman’s right to abortion. The Troika, as they became known, was cobbling together a joint opinion that, when added to the pro-abortion votes of Blackmun and John Stevens, would effectively negate Rehnquist’s effort to gut Roe v. Wade.