Whether it is consciously aware to an individual or not, a person’s environment, upbringing, social strata and personal experience all serve as building blocks to develop particular biases. Over the last three to four decades, many social scientists have researched exactly how this occurs, have significant these biases are, how they impact behavior and if they can be reversed (Kang and et al 2012) Following this trend, it only seems natural the subject of bias and if it does impact or influence professionals within the United States legal system, has become fairly common subject matter over the last ten years. Although judges and/or justices are supposed to be completely unbiased in their assessments of cases, social scientists have discovered they are not immune from this phenomenon, which is known as implicit bias (Kang and et al 2012). Since the decision was handed down in 1973, Roe v. Wade has been an extremely controversial case and its determination was no exception from any other, as it did include implicit bias.
A judge composes a decision in a case based on stare decisis or legal precedent, and legal reasoning, but Ward (2002) argues this is not always possible in the courtroom because they may be no legal precedent and the situation may have a tremendous social, political or economic impact that may need to be immediately addressed. Therefore, Ward (2002) proposes that judges make their decisions based on an “attitudinal approach” where a judges personal viewpoints, background and beliefs to play a role in a case’s outcome. “Every judge would tell you that the legal model is the correct one, but is it? Social scientists have provided much evidence to suggest that the attitudinal model is at work” (Ward 2002). In fact, Kang and et al (2012) state “Indeed, many legal academics have become so familiar with such heuristics and biases that they refer to them in their analyses as casually as they refer to economic concepts such as transactions costs.”
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So what type of a role did these biases play in Roe v. Wade? First of all, that era marked the emergence of various political, legal and social groups for all sorts of civil rights movements. There was the Civil Rights Act of 1968, the protests against the war in Vietnam, the women’s rights movement, the sexual revolution and the environmental movement. At that time, this county was undergoing a tremendous amount of upheaval on all levels and everything was changing. Therefore, it makes perfect sense the decision on abortion by the Supreme Court would reflect the current emotions and beliefs of the nation.
For example, in the 1960’s 44 states had outlawed abortion where the health or life of the mother were not threatened (Kliff, 2014). Later in that decade, however, states had begun to change their abortion laws to become much more liberal. Four states, Alaska, Washington, New York and Hawaii, had repealed their anti-abortion laws and thirteen states had reformed their anti-abortion laws (Kliff 2014). Obviously a decision legalizing abortion was on the horizon.
In addition to the people of America’s current culture and biases being represented by the justices of the Supreme Court, how about the justices themselves? Chief Justice Harry A. Blackmun had only been on the bench for three years, but by the time he retired in 1994 he had presided over nearly 4,000 cases, but he is best known for penning Roe v. Wade. Blackmun grew up in rural Minnesota and delivered milk to pay his way through Harvard. In the beginning of his political career he was known as a conservative. He was a staunch proponent of civil liberties and once said a person had the constitutional right to be “let alone” (Biskupic 1999). In referring to his decision on Roe v. Wade Blackmun said, “It’s a step that had to be taken…toward the full emancipation of women” (Biskupic 1999).
Although Blackmun received hate mail for the rest of his time as a Supreme Court justice, it is clear his personal convictions on constitutional rights and gender equality, or implicit bias, were present in his authorship of the Roe v. Wade case. Also, as Ward (2002) said attitudinal approach was also definitely employed as the justices’ 7-2 ruling in the case mirrored the current cultural, political and economic climate of the American people. No matter how hard all legal professionals attempt to rid themselves of bias in their work, it does present itself. It was a life circumstance that the justices in the Roe v. Wade case were not immune from.
