Hartigan v. Zbaraz

484 U. S. 171

December 14, 1987

An Illinois law required a minor to wait 24 hours before having an abortion. A circuit court declared this provision unconstitutional, and the Supreme Court affirmed in a tie vote. In tie votes, the lineup of the Justices is not revealed, but with greater than 90% certainty, we can guess that it was Brennan, Marshall, Blackmun, and Stevens to affirm, and Rehnquist, White, O’Connor, and Scalia to reverse. This tie vote underscored the importance of the incoming ninth Justice. In fact, the nomination hearings on Anthony Kennedy began on the very same day!

The most notable thing about this case is how strongly it suggests that the Court did not want to have a full-blown abortion decision. By December 14, the Court surely knew that Kennedy would be confirmed, and would join in the near future. And indeed, just as Kennedy was joining, Illinois asked for the case to be reheard. The request was denied. Three other cases during the term would confront abortion at the edges, but it wasn’t until 1989 that the Court would be forced to have a full-blown decision on the issue.

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