Poe v. Ullman Question

[Mark Rahdert]

According to The Supreme Court in Conference (Del Dickson, 
ed.)  797-803, in conference Stewart registered agreement with Harlan 
on the merits in Poe but disagreed on the merits in Griswold, without 
much explanation that surviving conference notes reveal.  I believe 
he later said in a concurring opinion (in Roe) that he had initially 
dissented in Griswold on the view that the cases involved substantive 
due process, but since the Court had now indicated its willingness to 
engage in substantive due process reasoning he was changing his 
vote.  Stewart also generally followed a pretty strict policy of 
accepting precedent with which he initially disagreed once he 
regarded it as firmly established.

Mark Rahdert
Temple

   At 08:44 AM 4/9/2007, Mary L. Dudziak wrote:
>
>I don't know the specific answer re: Stewart, but it might be helpful to
>keep in mind the facts of Poe.  Douglas put it this way in his dissent:
>"One wife is pathetically ill, having delivered a stillborn fetus. If
>she becomes pregnant again, her life will be gravely jeopardized."
>Buxton, CT's leading gynecologist, published an article either shortly
>before or after Poe (I don't have my notes on this with me) indicating
>that Yale docs had lost patients at their birth control clinic when
>unable to prescribe birth control for women whose health was at risk
>from pregnancy.  In the earlier CT Supreme Court cases, CT doctors and
>couples just sought an exception for birth control where there was a
>medical need.  So there was a position in between Griswold & no
>constitutional protection.  Perhaps that's what Stewart had in mind.
>
>I have an old article in the Iowa L. Rev., initially written for a
>symposium on state constitutional law, that goes through the CT history
>on this, if that's of interest...
>
>Best,
>Mary
>
>Mary L. Dudziak
>Judge Edward J. and Ruey L. Guirado Professor of Law, History and
>Political Science
>University of Southern California Law School
>On leave in Sharon, Massachusetts (2006-07)
>Home page:  mdudziak.com
>
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
>Sent: Sunday, April 08, 2007 7:46 PM
>To: conlawprof at lists.ucla.edu
>Subject: Poe v. Ullman Question
>
>MR. JUSTICE STEWART's dissent in Poe v. Ullman declared,
>
>"For the reasons so convincingly advanced by both MR. JUSTICE DOUGLAS
>and MR. JUSTICE HARLAN, I join them in dissenting from the dismissal of
>these appeals. Since the appeals are nonetheless dismissed, my dissent
>need go no further. However, in refraining from a discussion of the
>constitutional issues, I in no way imply that the ultimate result I
>would reach on the merits of these controversies would differ from the
>conclusions of my dissenting Brothers."
>
>This seems to be to indicate that, at least in 1960, he thought there
>was a constitutional right to birth control.  Do others read this
>dissent as I do?  If so, does anyone know why Stewart changed his mind?
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Mark C. Rahdert
Professor of Law
Temple University
Beasley School of Law
1719 North Broad Street
Philadelphia, PA  19122

Phone: 215-204-8966
Fax: 215-204-1185
Email: mark.rahdert at temple.edu