Thursday, December 24, 2015

The Coal strike of 1902

The Coal strike of 1902, also known as the anthracite coal strike, was a strike by the United Mine Workers of America in the anthracite coalfields of eastern Pennsylvania. Miners were on strike asking for higher wages, shorter workdays and the recognition of their union. The strike threatened to shut down the winter fuel supply to all major cities (homes and apartments were heated with anthracite or "hard" coal because it had higher heat value and less smoke than "soft" or bituminous coal). President Theodore Roosevelt became involved and set up a fact-finding commission that suspended the strike. The strike never resumed, as the miners received a 10% wage increase and reduced workdays from ten to nine hours; the owners got a higher price for coal, and did not recognize the trade union as a bargaining agent. It was the first labor episode in which the federal government intervened as a neutral arbitrator.

The United Mine Workers of America (UMWA) had won a sweeping victory in the 1897 strike by the soft-coal (bituminous coal) miners in the Midwest, winning significant wage increases and growing from 10,000 to 115,000 members. A number of small strikes took place in the anthracite district from 1899 to 1901, by which the labor union gained experience and unionized more workers. The 1899 strike in Nanticoke, Pennsylvania, demonstrated that the unions could win a strike directed against a subsidiary of one of the large railroads.

It hoped to make similar gains in 1900, but found the operators, who had established an oligopoly through concentration of ownership after drastic fluctuations in the market for anthracite, to be far more determined opponents than it had anticipated. The owners refused to meet or to arbitrate with the union; the union struck on September 17, 1900, with results that surprised even the union, as miners of all different nationalities walked out in support of the union.

Republican Senator Mark Hanna, himself an owner of bituminous coal mines (not involved in the strike) sought to resolve the strike, coming less than two months before the presidential election. He worked through the National Civic Federation which brought labor and capital together. Relying on J. P. Morgan to convey his message to the industry that a strike would hurt the reelection of Republican William McKinley, Hanna was able to convince the owners to concede a wage increase and grievance procedure to the strikers. The industry refused, on the other hand, to formally recognize the UMWA as the representative of the workers. The union declared victory and dropped its demand for union recognition.

The issues that led to the strike of 1900 were just as pressing in 1902: the union wanted recognition and a degree of control over the industry. The industry, still smarting from its concessions in 1900, opposed any federal role. The 150,000 miners wanted their weekly pay envelope. Tens of millions of city dwellers needed coal to heat their homes.

John Mitchell, President of the UMWA, proposed mediation through the National Civic Federation, then a body of relatively progressive employers committed to collective bargaining as a means of resolving labor disputes. In the alternative, Mitchell proposed that a committee of eminent clergymen report on conditions in the coalfields. George Baer, President of the Philadelphia and Reading Railroad, one of the leading employers in the industry, brushed aside both proposals dismissively:

"Anthracite mining is a business, and not a religious, sentimental, or academic proposition.... I could not if I would delegate this business management to even so highly a respectable body as the Civic Federation, nor can I call to my aid . . . the eminent prelates you have named."

On May 12, 1902, the anthracite miners voting in Scranton, Pennsylvania went out on strike. The maintenance employees, who had much steadier jobs and did not face the special dangers of underground work, walked out on June 2. The union had the support of roughly eighty percent of the workers in this area, or more than 100,000 strikers. Some 30,000 left the region, many headed for Midwestern bituminous mines; 10,000 returned to Europe. The strike soon produced threats of violence between the strikers on one side and strikebreakers, the Pennsylvania National Guard, local police and hired detective agencies on the other

On June 8 President Theodore Roosevelt asked his Commissioner of Labor, Carroll D. Wright, to investigate the strike. Wright investigated and proposed reforms that acknowledged each side's position, recommending a nine-hour day on an experimental basis and limited collective bargaining. Roosevelt chose not to release the report, for fear of appearing to side with the union.

The owners, for their part, refused to negotiate with the union. As George Baer wrote when urged to make concessions to the strikers and their union, the "rights and interests of the laboring man will be protected and cared for—not by the labor agitators, but by the Christian men to whom God in His infinite wisdom has given the control of the property interests of the country." The union used this letter to sway public opinion behind the strike.

Roosevelt wanted to intervene, but he was told by his Attorney General, Philander Knox, that he had no authority to do so. Hanna and many others in the Republican Party were likewise concerned about the political implications if the strike dragged on into winter, when the need for anthracite was greatest. As Roosevelt told Hanna, "A coal famine in the winter is an ugly thing and I fear we shall see terrible suffering and grave disaster."

Roosevelt therefore convened a conference of representatives of government, labor, and management on October 3, 1902. The union considered the mere holding of a meeting to be tantamount to union recognition and took a conciliatory tone. The owners told Roosevelt that strikers had killed over 20 men and that he should use the power of government "to protect the man who wants to work, and his wife and children when at work." With proper protection they would produce enough coal to end the fuel shortage; they refused to enter into any negotiations with the union. The governor sent in the National Guard, who protected the mines and the minority of men still working. Roosevelt attempted to persuade the union to end the strike with a promise that he would create a commission to study the causes of the strike and propose a solution, which Roosevelt promised to support with all of the authority of his office. Mitchell refused and his membership endorsed his decision by a nearly unanimous vote.

The economics of coal revolved around two factors: most of the cost of production was wages for miners, and if the supply fell the price would shoot up because in an age before oil and electricity, there were no good substitutes. Profits were low in 1902 because of an over supply; therefore the owners welcomed a moderately long strike. They had huge stockpiles which grew in value daily. It was illegal for the owners to conspire to shut down production, but not so if the miners went on strike. The owners welcomed the strike, but they adamantly refused to recognize the union, because they feared the union would control the coal industry by manipulating strikes.

Roosevelt continued to try to build support for a mediated solution, persuading former President Grover Cleveland to join the commission he was creating. He also considered sending the U.S. Army to take over the coalfields.

J.P. Morgan, the dominant figure in American finance, had played a role in resolving the 1900 strike. He was deeply involved in this strike as well: his interests included the Reading Railroad, one of the largest employers of miners, and he had installed George Baer, who spoke for the industry throughout the strike, as the head of the railroad.

Now, at the urging of Secretary of War Elihu Root, Morgan came up with another compromise proposal that provide for arbitration, while giving the industry the right to deny that it was bargaining with the union by directing that each employer and its employees communicate directly with the commission. The employers agreed on the condition that the five members be a military engineer, a mining engineer, a judge, an expert in the coal business, and an "eminent sociologist". The employers were willing to accept a union leader as the "eminent sociologist," so Roosevelt named E. E. Clark, head of the railway conductors' union, as the "eminent sociologist" and, after Catholics exerted pressure, added a sixth, Catholic bishop John Lancaster Spalding, and Commissioner Wright as the seventh member.

The anthracite strike ended, after 163 days, on October 23, 1902. The commissioners began work the next day, then spent a week touring the coal regions. Wright used the staff of the Department of Labor to collect data about the cost of living in the coalfields.

The commissioners then held hearings in Scranton over the next three months, taking testimony from 558 witnesses, including 240 for the striking miners, 153 for nonunion mineworkers, 154 for the operators and eleven called by the Commission itself. Baer made the closing arguments for the coal operators, while lawyer Clarence Darrow closed for the workers.

Although the commissioners heard some evidence of terrible conditions, they concluded that the "moving spectacle of horrors" represented only a small number of cases. By and large, social conditions in mine communities were found to be good, and miners were judged as only partly justified in their claim that annual earnings were not sufficient "to maintain an American standard of living."

Baer said in his closing arguments, "These men don't suffer. Why, hell, half of them don't even speak English". Darrow, for his part, summed up the pages of testimony of mistreatment he had obtained in the soaring rhetoric for which he was famous: "We are working for democracy, for humanity, for the future, for the day will come too late for us to see it or know it or receive its benefits, but which will come, and will remember our struggles, our triumphs, our defeats, and the words which we spake." In the end, however, the rhetoric of both sides made little difference to the Commission, which split the difference between mineworkers and mine owners. The miners asked for 20% wage increases, and most were given a 10% increase. The miners had asked for an eight-hour day and were awarded a nine-hour day instead of the standard ten hours then prevailing. While the operators refused to recognize the United Mine Workers, they were required to agree to a six-man arbitration board, made up of equal numbers of labor and management representatives, with the power to settle labor disputes. Mitchell considered that de facto recognition and called it a victory.

Organized labor celebrated the outcome as a victory for the UMWA and American Federation of Labor unions generally. Membership in other unions soared, as moderates argued they could produce concrete benefits for workers much sooner than radical Socialists who planned to overthrow capitalism in the future. Young John Mitchell proved his leadership skills and mastery of the problems of ethnic, skill, and regional divisions that had long plagued the union in the anthracite region. By contrast the strikes of the radical Western Federation of Miners in the West often turned into full-scale warfare between strikers and both employers and the civil and military authorities. This strike was successfully mediated through the intervention of the federal government, which strove to provide a "Square Deal"—which Roosevelt took as the motto for his administration—to both sides. The settlement was an important step in the Progressive era reforms of the decade that followed. There were no more major coal strikes until the 1920s.

Wednesday, December 23, 2015

Northern Securities Co. v. United States

Northern Securities Co. v. United States, 193 U.S. 197 (1904), was a case heard by the U.S. Supreme Court in 1903. The Court ruled 5 to 4 against the stockholders of the Great Northern and Northern Pacific railroad companies, who had essentially formed a monopoly, and to dissolve the Northern Securities Company.

In 1904, James Jerome Hill, president of and the largest stockholder in the Great Northern Railway, won the financial support of J. P. Morgan and attempted to take over the Chicago, Burlington and Quincy Railroad (CB&Q). The Burlington served a traffic-rich region of the Midwest and Great Plains, was well-managed, and quite profitable. It possessed a finely-engineered line connecting the Twin Cities to the nation's rail center of Chicago, which made it particularly attractive as an addition to Hill's Great Northern Railroad.

Hill's strategy was for his railroad and Morgan's Northern Pacific Railway to jointly buy the CB&Q.
 However, Edward Henry Harriman, president of the Union Pacific Railroad and the Southern Pacific Railroad, also wanted to buy the Chicago, Burlington and Quincy Harriman demanded a one-third interest in the CB&Q, but Hill refused him. Harriman then began to buy up Northern Pacific's stock, forcing Hill and Morgan to counter by purchasing more stock as well. Northern Pacific's stock price skyrocketed, and the artificially high stock threatened to cause a crash on the New York Stock Exchange. Hill and Morgan were ultimately successful in obtaining more Northern Pacific stock than Harriman and won control of not only the Northern Pacific but also the Chicago, Burlington and Quincy.

Pressured by Harriman's actions, Hill created a holding company—the Northern Securities Company—to control all three of the railroads. The public was greatly alarmed by the formation of Northern Securities, which threatened to become the largest company in the world and monopolize railroad traffic in the western United States. President William McKinley, however, was not willing to pursue antitrust litigation against Hill. McKinley was assassinated, however, and his progressive Vice-President, Theodore Roosevelt, ordered the United States Department of Justice to pursue a case against Northern Securities.

Tuesday, December 22, 2015

Danbury Hatters' Case

Loewe v. Lawlor, 208 U.S. 274 (1908), also referred to as the Danbury Hatters' Case, is a United States Supreme Court case concerning the application of antitrust laws to labor unions. The Court's decision had the effect of outlawing secondary boycotts as violative of the Sherman Antitrust Act, in the face of labor union protests that their actions affected only intrastate commerce. It was also decided that individual unionists could be held personally liable for damages incurred by the activities of their union.

In 1901, D. E. Loewe & Company, a fur hat manufacturer, declared itself an open shop. It was the third open shop ever established in Danbury, Connecticut, the center of the pelt industry since 1780. Loewe's declaration sparked a strike and a boycott by the United Hatters of North America (UHU), which had organized 70 out of 82 firms in the hat manufacturing industry. The nationwide boycott was assisted by the American Federation of Labor (AFL) and was successful in persuading retailers, wholesalers and customers not to buy from or do business with Loewe. The goal of the operation was for UHU to gain union recognition as the bargaining agent for employees at Loewe & Co.

Loewe & Co. sued the union for violating the Sherman Antitrust Act, alleging that UHU's boycott interfered with Loewe's ability to engage in the interstate commerce of selling hats. The act had been adopted in 1890 with the primary purpose to control business monopolies. The appellee in the case was Martin Lawlor, the business agent for the UHU, but the list of defendants included 240 union members.

The case was handled in the first instance by the United States Circuit Court for the District of Connecticut which dismissed the suit on the grounds that the alleged actions fell outside the scope of the Sherman Act. Loewe & Co. appealed to the United States Court of Appeals for the Second Circuit which certified the case to the Supreme Court.

In a unanimous decision written by Chief Justice Melville Fuller, the UHU was found to have been acting in restraint of interstate commerce, and to have violated the Sherman Antitrust Act. Fuller began the opinion by recounting the relevant provisions of the Sherman Act. The first, second, and seventh section of the act can be concisely described as follows:

1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is illegal.
2. Every person who monopolizes, or attempts to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, is in violation of the statute.
3. Any person who is injured in his business or property by any other person or corporation by reason of anything forbidden or declared illegal by the act may sue in federal court in the district of the defendant and recover three fold damages.
Fuller concluded that the actions of the union did constitute unlawful combination of the type described in the act: "In our opinion, the combination described in the declaration is a combination 'in restraint of trade or commerce among the several States,' in the sense in which those words are used in the act, and the action can be maintained accordingly."

The union had raised a number of objections to the application of the act to its activities, all of which were found to be untenable by the Court. While the union had not interfered with the transportation of hats originating with Loewe & Co., a national boycott conceived on the initiative of the union which comprised vendees in other states was a violation of interstate commerce as proscribed by the statute:

"If the purposes of the combination were, as alleged, to prevent any interstate transportation at all, the fact that the means operated at one end before physical transportation commenced, and at the other end after the physical transportation ended, was immaterial. And that conclusion rests on many judgments of this court, to the effect that the act prohibits any combination whatever to secure action which essentially obstructs the free flow of commerce between the States, or restricts, in that regard, the liberty of a trader to engage in business."
The fact that the union was not itself engaged in interstate commerce was irrelevant since the act did not distinguish between the types of associations involved but simply forbade every contract, combination or conspiracy in restraint of trade. In this regard, Fuller underscored that no exemption had been made for organizations of laborers or farmers, despite lobbying to include such language in the statute:

"The records of Congress show that several efforts were made to exempt, by legislation, organizations of farmers and laborers from the operation of the act, and that all these efforts failed, so that the act remained as we have it before us."
Consequently, while the boycott and strike action had originated in a single state, the combination efforts had to be viewed in aggregation:

" (...) [T]he acts must be considered as a whole, and the plan is open to condemnation notwithstanding a negligible amount of intrastate business might be affected in carrying it out."

The judgment of dismissal was reversed and the case was remanded for further proceedings.

In 1909, a new trial was held in the District Court to determine the outcome of the case. The presiding judge directed the jury to find for Loewe & Co. in accordance with the Supreme Court decision. The jury returned with a verdict of $74,000 in damages, which was trebled under the Sherman Act to $222,000. The union won on appeal but then lost on retrial in 1912. The case reached the Supreme Court in 1914, and in Lawlor v. Loewe (1915) the Court again held the union liable for damages. In 1917 the case was settled for slightly over $234,000 (approx. $3.9 million in 2009 currency) of which the AFL was able to obtain $216,000 in voluntary contributions from union members.

The ruling deprived labor unions of an important and effective union tactic, and the decision to hold individual union members personally liable for damages had an adverse impact on union organizing efforts. This led the AFL to initiate an aggressive campaign to convince Congress to address labor concerns about the Sherman Act in the reform of antitrust laws. The push culminated with the passage of the Clayton Antitrust Act of 1914, which provided that "the labor of a human being is not a commodity or an article of commerce." Section 20 of the act further stated that no injunctions should be granted by federal courts in labor disputes "unless necessary to prevent irreparable injury to property, or to a property right." These provisions, however, were narrowly interpreted by the Supreme Court, which ruled in Duplex Printing Press Company v. Deering (1921) that the exemptions in the Clayton Act did not protect secondary boycotts from judicial control.

Prosecution of labor under antitrust laws would continue until the enactment of the Norris-La Guardia Act in 1932, which included express exemptions of organized labor from antitrust injunctions. These exemptions were upheld by the Supreme Court in United States v. Hutcheson (1941) where it was stated that the act should be read broadly to provide a total antitrust exemption for labor unions, "so long as [the] union acts in its self-interest and does not combine with non-labor groups." The majority opinion in Hutcheson was written by Felix Frankfurter who, before becoming a Supreme Court Justice, had served as one of the drafters of Norris-La Guardia

Sunday, December 20, 2015

Stanford White

Stanford White (November 9, 1853 – June 25, 1906) was an American architect and partner in the architectural firm of McKim, Mead & White, the frontrunner among Beaux-Arts firms. He designed a long series of houses for the rich, and numerous public, institutional, and religious buildings. His design principles embodied the "American Renaissance".

In 1906, White was murdered by millionaire Harry Kendall Thaw over White's affair with Thaw's wife, actress Evelyn Nesbit, leading to a court case which was dubbed "The Trial of the Century" by contemporary reporters.

White was the son of Shakespearean scholar Richard Grant White and Alexina Black Mease (1830–1921). His father was a dandy and Anglophile with no money, but a great many connections in New York's art world, including painter John LaFarge, Louis Comfort Tiffany and Frederick Law Olmsted.

White had no formal architectural training; he began his career at the age of 18 as the principal assistant to Henry Hobson Richardson, the greatest American architect of the day, creator of a style recognized today as "Richardsonian Romanesque". He remained with Richardson for six years. In 1878, White embarked for a year and a half in Europe, and when he returned to New York in September 1879, he joined Charles Follen McKim and William Rutherford Mead to form McKim, Mead and White. As part of the partnership, all commissions designed by the architects were identified as being the work of the collective firm, not each separate architect.

In 1884, White married twenty-two-year-old Bessie Springs Smith. His new wife hailed from a socially prominent Long Island family; her ancestors were early settlers of the area, and Smithtown, New York was named for them. Their estate, Box Hill was not only a home, but also a showplace illustrating the luxe design aesthetic White offered prospective wealthy clients. A son, Lawrence Grant White, was born in 1887.

In 1889, White designed the triumphal arch at Washington Square, which, according to White's great-grandson, architect Samuel G. White, is the structure White should be best remembered for. White was the director of the Washington Centennial celebration, and created a temporary triumphal arch which was so popular, money was raised to construct a permanent version.

Elsewhere in New York City, White designed the Villard Houses (1884), the second Madison Square Garden (1890; demolished in 1925), the Cable Building – the cable car power station at 611 Broadway – (1893), the New York Herald Building (1894; demolished), the First Bowery Savings Bank, at the intersection of the Bowery and Grand Street (1894), Judson Memorial Church on Washington Square, the Century Club and Madison Square Presbyterian Church, as well as the Gould Memorial Library (1903), originally for New York University, now on the campus of Bronx Community College and the location of the Hall of Fame for Great Americans.

Outside of New York City, White designed the First Methodist Episcopal Church in Baltimore, Maryland (1887), now Lovely Lane United Methodist Church. He also designed the Cosmopolitan Building, a three-story Neo-classical Revival building topped by three small domes, in Irvington, New York, built in 1895 as the headquarters of Cosmopolitan Magazine. He designed Cocke, Rouss, and Old Cabell halls at the University of Virginia and rebuilt The Rotunda (University of Virginia) in 1898 after it burned down three years earlier (his re-creation was later reverted back to Thomas Jefferson's original design for the United States Bicentennial in 1976). He also designed the Blair Mansion at 7711 Eastern Ave. in Silver Spring, Maryland (1880), now being used as a restaurant. He was responsible for designing the Boston Public Library and the Boston Hotel Buckminster, both still standing today. In 1902, he designed the Benjamin Walworth Arnold House and Carriage House in Albany, New York, and he helped to develop Nikola Tesla's Wardenclyffe Tower, his last design.

Residential properties
In the division of projects within the firm, the sociable and gregarious White landed the majority of commissions for private houses. His fluent draftsmanship was highly convincing to clients who might not get much visceral understanding from a floorplan, and his intuition and facility caught the mood. White's Long Island houses have survived well, despite the loss of Harbor Hill in 1947, originally set on 688 acres (2.78 km2) in Roslyn. White's Long Island houses are of three types, depending on their locations: Gold Coast chateaux, neo-Colonial structures, especially those in the neighborhood of his own house at "Box Hill" in Smithtown, New York (White's wife was a Smith), and the South Fork houses from Southampton to Montauk Point. He also designed the Kate Annette Wetherill Estate in 1895. White designed a number of other New York mansions as well, including the Iselin family estate "All View" and "Four Chimneys" in New Rochelle. White was also active designing country estate homes in Greenwich, Connecticut. Examples there include the Seaman-Brush House (1900), which is now a bed and breakfast.

Among his Newport, Rhode Island, "cottages", Rosecliff (for Mrs. Hermann Oelrichs, 1898–1902) adapted Mansart's Grand Trianon, but provided this house built for receptions, dinners and dances with fluent spatial planning and well-contrived dramatic internal views en filade.

In his "informal" shingled cottages, there were usually double corridors for separate circulation, so that a guest never bumped into a laundress with a basket of bed linens. Bedrooms were characteristically separated from hallways by a dressing-room foyer lined with closets, so that an inner door and an outer door give superb privacy (still the mark of a really good hotel). White lived the same life as his clients, not quite so lavishly perhaps, and he knew how the house had to perform: like a first-rate hotel, theater foyer, or a theater set with appropriate historical references. White was an apt designer, who was ready to do a cover for Scribner's Magazine or design a pedestal for his friend Augustus Saint-Gaudens' sculpture. He extended the limits of architectural services to include interior decoration, dealing in art and antiques, and even planning and designing parties. He collected paintings, pottery, and tapestries. If White could not procure the right antiques for his interiors, he would sketch neo-Georgian standing electroliers or a Renaissance library table. Outgoing and social, he possessed a large circle of friends and acquaintances, many of whom became clients. White had a major influence in the "Shingle Style" of the 1880s, on Neo-Colonial style, and the Newport cottages for which he is celebrated.

He designed and decorated Fifth Avenue mansions for the Astors, the Vanderbilts (in 1905), and other high society families. His Washington Square Arch still stands in Washington Square Park, and so do many of his clubs, which were focal points of New York society: the Century, Metropolitan, Players, Lambs, Colony and Harmonie clubs. His clubhouse for the Atlantic Yacht Club, built in 1894 overlooking Gravesend Bay, burned down in 1934. Sons of society families also resided in White's St. Anthony Hall Chapter House at Williams College, now occupied by college offices.

Personal life
White, a tall, flamboyant man with red hair and a red mustache, impressed others as witty, kind, and generous. The newspapers frequently described him as "masterful," "intense," "burly yet boyish." A sophisticated collector of all things rare and costly, artwork, and antiquities, White was also a serial seducer of teenage girls. He maintained a multi-story apartment on 24th street in Manhattan with a rear entrance, its interior design intended to fulfill one primary purpose, to function as an opulent, seductive lair where White and his female conquests could "wine and dine" in seclusion. One green hued room was outfitted with a red velvet swing, which hung from the ceiling suspended by ivy-twined ropes. This is where Evelyn Nesbit, a popular chorus girl and model, and other young women "in varying degrees of undress" would provide the entertainment. There are conflicting accounts of whether this swing was in the "Giralda" tower at the old Madison Square Garden, or in the nearby building on 24th street. Most sources seem to concur that the notorious swing was a feature of the 24th Street location.

Murder
"The Trial of the Century"

White’s presence at the roof garden theatre of Madison Square Garden on the night of June 25, 1906 had been an impromptu decision. White had originally planned to be in Philadelphia on business; he postponed the trip when his son, Lawrence, made an unexpected visit to New York. They dined at Martin's, near the theatre, where Harry Kendall Thaw and his wife Evelyn Nesbit also dined; Thaw apparently saw White there.

That evening’s theatrical presentation was the premiere performance of Mam'zelle Champagne. During the show’s finale, "I Could Love A Million Girls", Thaw approached White, produced a pistol, and standing some two feet from his target, said "You've ruined my wife", and fired three shots at White, killing him instantly. Part of White’s face was torn away and the rest of his features were unrecognizable, blackened by gunpowder. The initial reaction of the crowd was one of good cheer, as elaborate party tricks among the upper echelon of New York society were common at the time. However, when it became apparent that White was dead, hysteria ensued.

Thaw, a Pittsburgh millionaire, and a man with a history of severe mental instability, was a jealous husband who saw White as his rival. White had seduced Nesbit when she was sixteen and he was forty-seven years old, and in the years following had remained a potent presence in Nesbit's life. However, by the time he was murdered, White had long since moved on to other lovers, and it is conjectured that Stanford White himself was unaware of Thaw’s long-standing vendetta against him. White considered Thaw a poseur of little consequence, categorized him as a clown—and most tellingly, called him the “Pennsylvania pug” – a reference to Thaw’s baby-faced features. The reality was that Thaw both admired and resented White’s social stature. More significantly, he recognized that he and White shared a passion for similar lifestyles. However, unlike Thaw, who had to operate in the shadows, White could carry on without censure, and seemingly, with impunity.

The nineteen-year-old Lawrence Grant White was guilt ridden after his father was slain, blaming himself for his death. “If only he had gone [to Philadelphia]!”  Years later, he would write bitterly, "On the night of June 25th, 1906, while attending a performance at Madison Square Garden, Stanford White was shot from behind [by] a crazed profligate whose great wealth was used to besmirch his victim's memory during the series of notorious trials that ensued." White was buried in St. James, New York.


New York American on June 26th, 1906
News coverage
As early as the morning following the murder, news coverage became both chaotic and single-minded, and ground forward with unrelenting momentum. The newspapers of William Randolph Hearst played up the murder, and it became known as the "Trial of the Century". The rampant interest in the White murder and its key players was used by both the defense and prosecution in Thaw’s murder trial to feed malleable reporters any "scoops" that would give their respective sides an advantage in the public forum.

Any person, place or event, no matter how peripheral to White's murder was seized on by reporters and hyped as newsworthy copy. Facts were thin but sensationalist reportage was plentiful in this, the heyday of tabloid journalism. The hard-boiled male reporters were bolstered by a contingent of female counterparts, christened "Sob Sisters", also known as the "Pity Patrol". Their stock in trade was the human-interest piece, heavy on sentimental tropes and melodrama, crafted to pull on the emotions and punch them up to fever pitch.

Stanford White, in death, was not spared the frenzy of printed invective, which not only excoriated him as a man, but also questioned his professional achievements as architect. The Evening Standard concluded he was “more of an artist than architect,” his work spoke of his “social dissolution.” The Nation was also critical: “…He adorned many an American mansion with irrelevant plunder.” The yellow press used lurid language to demonize White as “a sybarite of debauchery, a man who abandoned lofty enterprises for vicious revels.”

Defenses
Few friends or associates came forward to publicly defend White. His close friend, sculptor, Augustus Saint-Gaudens, was gravely ill and unable to speak out.

Richard Harding Davis, a war correspondent and reputedly the model for the “Gibson Man,” was angered by the tabloid press, which, he was adamant, had distorted the facts. An editorial, which appeared in Vanity Fair, lambasting White and shredding his reputation, prompted Davis to pen his own rebuttal. The article appeared on August 8, 1906 in Collier's magazine:

Since his death White has been described as a satyr. To answer this by saying that he was a great architect is not to answer at all…what is more important is that he was a most kindhearted, most considerate, gentle and manly man, who could no more have done the things attributed to him than he could have roasted a baby on a spit. Big in mind and in body, he was incapable of little meanness. He admired a beautiful woman as he admired every other beautiful thing God has given us; and his delight over one was as keen, as boyish, as grateful over any others.

Autopsy
The autopsy report made public by the coroner’s testimony at the Thaw trial revealed that White was seriously ill at the time of his murder. He in fact would have succumbed shortly to any of the diseases he suffered from: Bright's disease, incipient tuberculosis, and severe liver deterioration.

Fictional portrayals
The Girl in the Red Velvet Swing – a 1955 movie in which Ray Milland played White
The 1975 historical fiction novel Ragtime by E. L. Doctorow
The musical Ragtime, based on the novel
The 1981 film Ragtime, based on the novel, in which White was played by Norman Mailer, Thaw by Robert Joy, and Nesbit by Elizabeth McGovern
"Dementia Americana" – a long narrative poem by Keith Maillard (1994)
My Sweetheart's the Man in the Moon – a play by Don Nigro
La fille coupĂ©e en deux ("The Girl Cut in Two") – a 2007 movie by Claude Chabrol

Saturday, December 19, 2015

The Know Nothings

The Native American Party, renamed in 1855 as the American Party, and commonly named Know Nothing movement, was an American political party that operated on a national basis during the mid-1850s. It promised to purify American politics by limiting or ending the influence of Irish Catholics and other immigrants, thus reflecting nativism and anti-Catholic sentiment. It was empowered by popular fears that the country was being overwhelmed by German and Irish Catholic immigrants, whom they saw as hostile to republican values and controlled by the Pope in Rome. Mainly active from 1854 to 1856, it strove to curb immigration and naturalization, but met with little success. Membership was limited to Protestant men. There were few prominent leaders, and the largely middle-class membership fragmented over the issue of slavery.

The most prominent leaders were U.S. Representative Nathaniel P. Banks, and former U.S. Representative Lewis C. Levin. The American Party nominated former President Millard Fillmore in 1856. He was never a member, nor a nativist.

Anti-Catholicism had been a factor in colonial America, but played little role in American politics until the arrival of large numbers of Irish and German Catholics in the 1840s. It now reemerged in nativist attacks on Catholic immigration. It appeared in New York politics as early as 1843, under the banner of the American Republican Party. The movement quickly spread to nearby states, using that name or the Native American Party or variants thereon. They succeeded in a number of local and Congressional elections, notably in 1844 Philadelphia where the anti-Catholic orator Lewis Charles Levin was elected U.S. Representative from Pennsylvania's 1st District. In the early 1850s, numerous secret orders grew up, of which the "Order of United Americans" and the Order of the Star Spangled Banner came to be the most important. They merged in New York in the early 1850s as a secret order that quickly spread across the North, reaching non-Catholics, particularly those who were lower middle class or skilled workmen.

Name
The origin of the "Know Nothing" term was in the semi-secret organization of the party. When a member was asked about its activities, he was supposed to reply, "I know nothing." Outsiders called them "Know-Nothings", and the name stuck. In 1855, the Know-Nothings first entered politics under the American Party label.

Underlying issues
The immigration of large numbers of Irish and German Catholics to the United States in the period between 1830 and 1860 made religious differences between Catholics and Protestants a political issue. Violence occasionally erupted at the polls. Protestants alleged that Pope Pius IX had put down the failed liberal Revolutions of 1848 and that he was an opponent of liberty, democracy and Republicanism. One Boston minister described Catholicism as "the ally of tyranny, the opponent of material prosperity, the foe of thrift, the enemy of the railroad, the caucus, and the school." These fears encouraged conspiracy theories regarding papal intentions of subjugating the United States through a continuing influx of Catholics controlled by Irish bishops obedient to and personally selected by the Pope.

In 1849, an oath-bound secret society, the Order of the Star Spangled Banner, was created by one Charles B. Allen in New York City. Fear of Catholic immigration led to a dissatisfaction with the Democratic Party, whose leadership in many cities included Catholics of Irish descent. Activists formed secret groups, coordinating their votes and throwing their weight behind candidates sympathetic to their cause. When asked about these secret organizations, members were to reply "I know nothing," which led to their popularly being called Know Nothings.

Immigration during the first five years of the 1850s reached a level five times greater than a decade earlier. Most of the new arrivals were poor Catholic peasants or laborers from Ireland and Germany who crowded into the tenements of large cities. Crime and welfare costs soared. Cincinnati's crime rate, for example, tripled between 1846 and 1853 and its murder rate increased sevenfold. Boston's expenditures for poor relief rose threefold during the same period.

— James M. McPherson, Battle Cry of Freedom, p. 131.
Rise
In spring 1854, the Know Nothings carried Boston, Salem, and other New England cities. They swept the state of Massachusetts in the fall 1854 elections, their biggest victory. The Whig candidate for mayor of Philadelphia, editor Robert T. Conrad, was soon revealed as a Know Nothing; he promised to crack down on crime, close saloons on Sundays, and to appoint only native-born Americans to office. He won by a landslide. In Washington, D.C., Know-Nothing candidate John T. Towers defeated incumbent Mayor John Walker Maury, causing opposition of such proportion that the Democrats, Whigs, and Freesoilers in the capital united as the "Anti-Know-Nothing Party". In New York, in a four-way race, the Know-Nothing candidate ran third with 26%. After the 1854 elections, they claimed to have exerted decisive influence in Maine, Indiana, Pennsylvania, and California, but historians are unsure due to the secrecy, as all parties were in turmoil and the anti-slavery and prohibition issues overlapped with nativism in complex and confusing ways. They helped elect Stephen Palfrey Webb as Mayor of San Francisco, and J. Neely Johnson as Governor of California. Nathaniel P. Banks, former Speaker of the Massachusetts House of Representatives, was elected to Congress as a Know Nothing candidate, though he later aligned with Republicans (and as such was elected Speaker of the United States House of Representatives).

The results of the 1854 elections were so favorable to the Know Nothings, up to then an informal movement with no centralized organization, that they formed officially as a political party called the American Party, which attracted many members of the now nearly-defunct Whig party as well as a significant number of Democrats and prohibitionists. Membership in the American Party increased dramatically, from 50,000 to an estimated one million plus in a matter of months during that year.

A historian of the Know Nothing party concluded:

The key to Know Nothing success in 1854 was the collapse of the second party system, brought about primarily by the demise of the Whig Party. The Whig Party, weakened for years by internal dissent and chronic factionalism, was nearly destroyed by the Kansas-Nebraska Act. Growing anti-party sentiment, fueled by anti-slavery as well as temperance and nativism, also contributed to the disintegration of the party system. The collapsing second party system gave the Know Nothings a much larger pool of potential converts than was available to previous nativist organizations, allowing the Order to succeed where older nativist groups had failed.

In San Francisco, California, a Know-Nothing chapter was founded in 1854 to oppose Chinese immigration; members included a judge of the state supreme court, who ruled that no Chinese person could testify as a witness against a white man in court.


Fillmore/Donelson campaign poster
In the spring of 1855, Levi Boone was elected Mayor of Chicago for the Know Nothings. He barred all immigrants from city jobs. Abraham Lincoln was strongly opposed to the principles of the Know Nothing movement, but he did not denounce it publicly because he needed the votes of its membership to form a successful anti-slavery coalition in Illinois. Ohio was the only state where the party gained strength in 1855. Their Ohio success seems to have come from winning over immigrants, especially German American Lutherans and Scots-Irish Presbyterians, both hostile to Roman Catholicism. In Alabama, Know Nothings were a mix of former Whigs, malcontented Democrats, and other political outsiders who favored state aid to build more railroads. Virginia attracted national attention in its tempestuous 1855 gubernatorial. Democrat Henry Alexander Wise won by convincing state voters that Know Nothings were in bed with Northern abolitionists. With the victory by Wise, the movement began to collapse in the South.

Know-Nothings scored startling victories in northern state elections in 1854, winning control of the legislature in Massachusetts and polling 40% of the vote in Pennsylvania. Although most of the new immigrants lived in the North, resentment and anger against them was national, and the American Party initially polled well in the South, attracting the votes of many former southern Whigs.

The party name gained wide but brief popularity. Nativism became a new American rage: Know-Nothing candy, Know-nothing tea, and Know-Nothing toothpicks appeared. Stagecoaches were dubbed "The Know-Nothing". In Trescott, Maine, a shipowner dubbed his new 700-ton freighter, Know-Nothing. The party was occasionally referred to contemporaneously in a slightly pejorative shortening, Knism.

Leadership and legislation
Historian John Mulkern has examined the party's success in sweeping to almost complete control of the Massachusetts legislature after its 1854 landslide victory. He finds the new party was populist and highly democratic, hostile to wealth, elites, and to expertise, and deeply suspicious of outsiders especially Catholics. The new party's voters were concentrated in the rapidly growing industrial towns, where Yankee workers faced direct competition with new Irish immigrants. Whereas the Whig Party was strongest in high income districts, the Know Nothing electorate was strongest in the poor districts. They expelled the traditional upper-class closed political leadership class, especially the lawyers and merchants. In their stead they elected working class men, farmers, and a large number of teachers and ministers. Replacing the moneyed elite were men who seldom owned $10,000 in property.

Nationally, the new party leadership showed incomes, occupation and social status that were about average. Few were wealthy, according to detailed historical studies of once-secret membership rosters. Fewer than 10% were unskilled workers who might come in direct competition with Irish laborers. They enlisted few farmers, but on the other hand, they included many merchants and factory owners. The party's voters were by no means all native-born Americans, for it won more than a fourth of the German and British Protestants in numerous state elections. It especially appealed to Protestants such as the Lutherans, Dutch Reformed, and Presbyterians.

The most aggressive and innovative legislation came out of Massachusetts, where the new party controlled all but three of the 400 seats; only 35 had any previous legislative experience. The Massachusetts legislature in 1855 passed a series of reforms that "burst the dam against change erected by party politics, and released a flood of reforms." Historian Stephen Taylor says that in addition to nativist legislation:

the party also distinguished itself by its opposition to slavery, support for an expansion of the rights of women, regulation of industry, and support of measures designed to improve the status of working people.
It passed legislation to regulate railroads, insurance companies, and public utilities. It funded free textbooks for the public schools, and raised the appropriations for local libraries and for the school for the blind. Purification of Massachusetts against divisive social evils was a high priority. The legislature set up the state's first reform school for juvenile delinquents, while trying to block the importation of supposedly subversive government documents and academic books from Europe. It upgraded the legal status of wives, giving them more property rights and more rights in divorce courts. It passed harsh penalties on speakeasies, gambling houses and bordellos, It passed prohibition legislation with penalties that were so stiff—such as six months in prison for serving one glass of beer—that juries refused to convict. Many of the reforms were quite expensive; State spending rose 45% on top of a 50% hike in annual taxes on cities and towns. Extravagance angered the taxpayers; few Know Nothings were reelected.

The highest priority included attacks on the civil rights of Irish Catholic immigrants. After this, State courts lost the power to process applications for citizenship and public schools had to require compulsory daily reading of the Protestant Bible (which the nativists were sure would transform the Catholic children). The governor disbanded the Irish militias, and replaced Irish holding state jobs with Protestants. It failed to reach the two-thirds vote needed to pass a state constitutional amendment to restrict voting and office holding to men who had resided in Massachusetts for at least 21 years. The legislature then called on Congress to raise the requirement for naturalization from five years to 21 years, but Congress never acted. The most dramatic move by the Know Nothing legislature was to appoint an investigating committee designed to prove widespread sexual immorality under way in Catholic convents. The press had a field day following the story, especially when it was discovered that the key reformer was using committee funds to pay for a prostitute. The legislature shut down its committee, ejected the reformer, and saw its investigation become a laughing stock.

Violence
Fearful that Catholics were flooding the polls with non-citizens, local activists threatened to stop them. Tensions came to a head on 6 August 1855, in Louisville, Kentucky, where in a hotly contested race for the office of governor, 22 were killed and many injured. The Louisville riot was only the most spectacular of violent riots between Know Nothing activists and Catholics in 1855. In Baltimore the mayoral elections of 1856, 1857 and 1858 were all marred by violence and well-founded accusations of ballot-rigging. In Maine, Know-Nothings were associated with the tarring and feathering of a Catholic priest, Father John Bapst, in the coastal town of Ellsworth in 1851 and the burning of a Catholic church in Bath in 1854.

South
In the South, the American Party was composed chiefly of ex-Whigs looking for a vehicle to fight the dominant Democratic Party and worried about both the pro-slavery extremism of the Democrats and the emergence of the anti-slavery Republican party in the North. In the South as a whole the American Party was strongest among former Unionist Whigs. States-rightist Whigs shunned it, enabling the Democrats to win most of the South. Whigs supported the American Party because of their desire to defeat the Democrats, their unionist sentiment, their anti-immigrant attitudes, and the Know-Nothing neutrality on the slavery issue. In 1855 the American Party challenged the Democrats' dominance. In Alabama, the Know-Nothings were a mix of former Whig, malcontented Democrats, and other political misfits; they favored state aid to build more railroads. In the fierce campaign, the Democrats argued that Know-Nothings could not protect slavery from Northern abolitionists. The Know-Nothing American Party disintegrated soon after losing in 1855.

In Louisiana and Maryland, the Know-Nothings enlisted native-born Catholics. In Maryland, the party's influence lasted at least through the Civil War: the American Party's Governor, and later Senator, Thomas Holliday Hicks, Representative Henry Winter Davis, and Senator Anthony Kennedy, with his brother, former Representative John Pendleton Kennedy, all supported the United States in a State which bordered the Confederate States. Historian Michael F. Holt argues that "Know Nothingism originally grew in the South for the same reasons it spread in the North—nativism, anti-Catholicism, and animosity toward unresponsive politicos—not because of conservative Unionism." Holt cites William B. Campbell, former governor of Tennessee, who wrote in January 1855, "I have been astonished at the widespread feeling in favor of their principles—to wit, Native Americanism and anti-Catholicism—it takes everywhere."

Results by county indicating the percentage for Fillmore in each county.
The party declined rapidly in the North after 1855. In the presidential election of 1856, it was bitterly divided over slavery. The main faction supported the ticket of presidential nominee Millard Fillmore and vice-presidential nominee Andrew Jackson Donelson. Fillmore, a former President, had been a Whig, and Donelson was the nephew of Democratic President Andrew Jackson, so the ticket was designed to appeal to loyalists from both major parties, winning 23% of the popular vote and carrying one state, Maryland, with eight electoral votes. Fillmore did not win enough votes to block Democrat James Buchanan from the White House. During this time, Nathaniel Banks decided he wasn't as strongly for the anti-immigrant platform as the party wanted him to be, so he left the Know Nothing Party for the more anti-slavery Republican Party. He contributed to the decline of the Know Nothing Party by taking 2/3 of its members with him.

Many were appalled by the Know-Nothings. Abraham Lincoln expressed his own disgust with the political party in a private letter to Joshua Speed written in August 24, 1855. Lincoln never publicly attacked the Know Nothings, whose votes he needed:

I am not a Know-Nothing — that is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes and foreigners and Catholics.' When it comes to that I should prefer emigrating to some country where they make no pretense of loving liberty — to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.

Historian Allan Nevins says Fillmore was never a Know-Nothing or a nativist. He was out of the country when the nomination came and had not been consulted about running. Furthermore:

He was not a member of the party; he had never attended an American [Know-Nothing] gathering. By no spoken or written word had he indicated a subscription to American tenets.

After the Supreme Court's controversial Dred Scott v. Sandford ruling in 1857, most of the anti-slavery members of the American Party joined the Republican Party. The pro-slavery wing of the American Party remained strong on the local and state levels in a few southern states, but by the 1860 election, they were no longer a serious national political movement. Most of their remaining members supported the Constitutional Union Party in 1860.

Whittaker Chambers

Whittaker Chambers (April 1, 1901 – July 9, 1961), born Jay Vivian Chambers and also known as David Whittaker Chambers, was an American writer and editor. After his early years as a Communist Party USA member and Soviet spy, he renounced communism, became an outspoken opponent, and testified at Alger Hiss's perjury and espionage trial. He described both events in his book Witness, published in 1952.

Whittaker Chambers was born in Philadelphia, Pennsylvania, and spent his infancy in Brooklyn. His family moved to Lynbrook, Long Island, New York, in 1904, where he grew up and attended school. His parents were Jay Chambers and Laha (Whittaker). Chambers described his childhood as troubled because of his parents' separation and their need to care for their mentally ill grandmother. Chambers' brother committed suicide shortly after withdrawing from his first year of college. Chambers would cite his brother's troubled life and eventual suicide as one of many reasons that he was drawn to communism as a young man.

After graduating from South Side High School in neighboring Rockville Centre in 1919, Chambers worked at a variety of jobs before attending Williams College in 1920. He later enrolled as a day student at Columbia University. At Columbia his fellow students included Meyer Schapiro, Louis Zukofsky, Clifton Fadiman, John Gassner, Lionel Trilling (who later fictionalized him as a main character in his novel The Middle of the Journey), and Guy Endore. In the intellectual environment of Columbia he gained friends and respect. His professors and fellow students found him a talented writer and believed he might become a major poet or novelist.

Early in his sophomore year, Chambers wrote a play called A Play for Puppets for Columbia's literary magazine The Morningside, which he edited. The work was deemed blasphemous by many students and administrators, and the controversy spread to New York City newspapers. Later, the play would be used against Chambers during his testimony against Alger Hiss. Disheartened over the controversy, Chambers left Columbia in 1925. From Columbia, Chambers also knew Isaiah Oggins, who went into the Soviet underground a few years earlier; Chambers' wife, Esther Shemitz Chambers, knew Oggins' wife, Nerma Berman Oggins, from the Rand School of Social Science, the ILGWU, and The World Tomorrow.

In 1930 or 1931, Chambers married the young artist Esther Shemitz (1900–1986). Shemitz, who had studied at the Art Students League and integrated herself into New York City's intellectual circles, met Chambers at the 1926 textile strike at Passaic, New Jersey. They then underwent a stormy courtship that faced resistance from their comrades, with Chambers having climbed through her window at five o'clock in the morning to propose. Shemitz identified as "a pacifist rather than a revolutionary." In the 1920s, she worked for The World Tomorrow, a pacifist magazine.

The couple had two children, a son, John, and a daughter, Ellen, during the 1930s. Ellen had two sons, Steve and John. Communist leadership had demanded that the family abort the first pregnancy, but Chambers secretly refused. His decision marked a key point in his gradual disillusionment with communism. He regarded the birth of his first child as "the most miraculous thing that had ever happened in my life".

In a letter to J. Edgar Hoover, Chambers wrote that he had numerous homosexual liaisons during the 1930s, starting in 1933. He said that his frequent traveling gave him an opportunity for "cruising", especially in New York City and Washington, D.C. He insisted that he kept these activities secret from everyone, including his communist handlers and his comrades given their negative attitudes towards homosexuality. Chambers also had heterosexual affairs.

Chambers told the FBI that he gave up these practices in 1938 when he left the communist underground. He attributed this change of heart to his newfound Christianity. Chambers' admissions, given the strong social attitudes against homosexuals in 1949, led to a hostile response.

In 1924, Chambers read Vladimir Lenin's Soviets at Work and was deeply affected by it. He now saw the dysfunctional nature of his family, he would write, as "in miniature the whole crisis of the middle class"; a malaise from which Communism promised liberation. Chambers's biographer Sam Tanenhaus wrote that Lenin's authoritarianism was "precisely what attracts Chambers... He had at last found his church"; that is, he became a Marxist. In 1925, Chambers joined the Communist Party of the United States (CPUSA) (then known as the Workers Party of America). Chambers wrote and edited for Communist publications, including The Daily Worker newspaper and The New Masses magazine. Combining his literary talents with his devotion to Communism, Chambers wrote four short stories in 1931 about proletarian hardship and revolt, including Can You Make Out Their Voices?, considered by critics as one of the best pieces of fiction from the American Communist movement. Hallie Flanagan co-adapted and produced it as a play entitled Can You Hear Their Voices? (see Writings by Chambers, below), staged across America and in many other countries. Chambers also worked as a translator during this period; among his works was the English version of Felix Salten's 1923 novel Bambi, A Life in the Woods.

Harold Ware
Chambers was recruited to join the "Communist underground" and began his career as a spy, working for a GRU apparatus headed by Alexander Ulanovsky (aka Ulrich). Later, his main controller in the underground was Josef Peters (whom CPUSA General Secretary Earl Browder later replaced with Rudy Baker). Chambers claimed Peters introduced him to Harold Ware (although he later denied he had ever been introduced to Ware), and that he was head of a Communist underground cell in Washington that reportedly included:

Henry Collins, employed at the National Recovery Administration and later the Agricultural Adjustment Administration (AAA).
Lee Pressman, assistant general counsel of the AAA.
Alger Hiss, attorney for the AAA and the Nye Committee; he moved to the Department of State in 1936, where he became an increasingly prominent figure.
John Abt, chief of Litigation for the AAA from 1933 to 1935, assistant general counsel of the Works Progress Administration in 1935, chief counsel on Senator Robert La Follette, Jr.'s LaFollette Committee from 1936 to 1937 and special assistant to the United States Attorney General, 1937 and 1938.
Charles Kramer, employed at the Department of Labor National Labor Relations Board (NLRB).
Nathan Witt, employed at the AAA; later moved to the NLRB.
George Silverman, employed at the Railroad Retirement Board; later worked with the Federal Coordinator of Transport, the United States Tariff Commission and the Labor Advisory Board of the National Recovery Administration.
Marion Bachrach, sister of John Abt; office manager to Representative John Bernard of the Minnesota Farmer-Labor Party.
John Herrmann, author; assistant to Harold Ware; employed at the AAA; courier and document photographer for the Ware group; introduced Chambers to Hiss.
Nathaniel Weyl, author; would later defect from Communism himself and give evidence against party members.
Donald Hiss, brother to Alger Hiss; employed at the Department of State.
Victor Perlo, chief of the Aviation Section of the War Production Board, later joined the Office of Price Administration Department of Commerce and the Division of Monetary Research at the Department of Treasury.
Apart from Marion Bachrach, these people were all members of Franklin D. Roosevelt's New Deal administration. Chambers worked in Washington as an organizer among Communists in the city and as a courier between New York and Washington for stolen documents which were delivered to Boris Bykov, the GRU station chief.

Other covert sources
Using the codename "Karl" or "Carl", Chambers served during the mid-1930s as a courier between various covert sources and Soviet intelligence. In addition to the Ware group mentioned above, other sources that Chambers dealt with allegedly included:

Noel Field, employed at the Department of State.
Harold Glasser, Assistant Director, Division of Monetary Research, United States Department of the Treasury.
Ward Pigman, employed at the National Bureau of Standards; Labor and Public Welfare Committee.
Vincent Reno, a mathematician at the U.S. Army Aberdeen Proving Ground.
Julian Wadleigh, economist with the Department of Agriculture and later the Trade Agreements section of the United States Department of State.
Harry Dexter White, Director of the Division of Monetary Research at the Secretary of the Treasury.
Defection
Chambers carried on his espionage activities from 1932 until 1937 or 1938 even while his faith in Communism was waning. He became increasingly disturbed by Joseph Stalin's Great Purge, which began in 1936. He was also fearful for his own life, having noted the murder in Switzerland of Ignatz Reiss, a high-ranking Soviet spy who had broken with Stalin, and the disappearance of Chambers' friend and fellow spy Juliet Poyntz in the United States. Poyntz had vanished in 1937, shortly after she had visited Moscow and returned disillusioned with the Communist cause due to the Stalinist Purges.

Chambers ignored several orders that he travel to Moscow, worried that he might be "purged." He also started concealing some of the documents he collected from his sources. He planned to use these, along with several rolls of microfilm photographs of documents, as a "life preserver" to prevent the Soviets from killing him and his family.

In 1938, Chambers broke with Communism and took his family into hiding, storing the "life preserver" at the home of his nephew and his parents. Initially he had no plans to give information on his espionage activities to the U.S. government. His espionage contacts were his friends, and he had no desire to inform on them.

Berle meeting
The August 1939 Hitler-Stalin non-aggression pact drove Chambers to take action against the Soviet Union. In September 1939, at the urging of anti-Communist, Russian-born journalist Isaac Don Levine, Chambers and Levine met with Assistant Secretary of State Adolf Berle. Levine had introduced Chambers to Walter Krivitsky, who was already informing American and British authorities about Soviet agents who held posts in both governments. Krivitsky told Chambers it was their duty to inform. Chambers agreed to reveal what he knew on the condition of immunity from prosecution. During the meeting, which took place at Berle's home, Woodley Mansion in Washington, Chambers named 18 current and former government employees as spies or Communist sympathizers. Many names mentioned held relatively minor posts or were already under suspicion. Some names, however, were more significant and surprising: Alger Hiss, his brother Donald Hiss, and Laurence Duggan—who were all respected, mid-level officials in the State Department—and Lauchlin Currie, a special assistant to Franklin Roosevelt. Another person named had worked on a top secret bombsight project at the Aberdeen Proving Grounds.

Berle found Chambers' information tentative, unclear, and uncorroborated. He took the information to the White House, but the President dismissed it, to which Berle made little if any objection. Berle kept his notes, however (later, evidence during Hiss' perjury trials).

Berle notified the Federal Bureau of Investigation (FBI) of Chambers's information in March 1940. In February 1941, Krivitsky was found dead in his hotel room. While police ruled the death a suicide, it was widely speculated that Krivitsky had been killed by Soviet intelligence. Worried that the Soviets might try to kill Chambers too, Berle again told the FBI about his interview with Chambers. Nevertheless, the FBI took no immediate action, in line with the political orientation of the United States, which viewed the potential threat from the USSR as minor, when compared to that of Nazi Germany.

(The FBI did interview Chambers in May 1942 and June 1945, without further action. Only in November 1945, when Elizabeth Bentley defected and corroborated much of Chambers's story, did the FBI begin to take Chambers seriously).

Time Magazine
By the time of the Berle meeting, Chambers had come out of hiding after a year and joined the staff of Time Magazine (April 1939). He landed a cover story within a month on James Joyce's latest book, Finnegans Wake. He started at the back of the magazine, reviewing books and film with James Agee and then Calvin Fixx. When Fixx died in October 1942, Wilder Hobson succeeded him as Chambers' assistant editor in Arts & Entertainment. Other writers working for Chambers in that section included: novelist Nigel Dennis, future New York Times Book Review editor Harvey Breit, and poets Howard Moss and Weldon Kees. During this time, a struggle arose between those, like Theodore H. White and Richard Lauterbach, who raised criticism of what they saw as the elitism, corruption and ineptitude of Chiang Kai-shek's regime in China and advocated greater cooperation with Mao's Red Army in the struggle against Japanese imperialism, and Chambers and others like Willi Schlamm who adhered to a staunchly pro-Chiang, anti-communist perspective (and who both later joined the founding editorial board of William F. Buckley, Jr.'s National Review). Time founder Henry R. Luce, who grew up in China and was a personal friend of Chiang and his wife, came down squarely on the side of Chambers to the point that White complained that his stories were being censored, and even suppressed in their entirety, and left Time shortly after the war as a result. With Luce's blessing, Chambers received a promotion to senior editor in September 1943 and was made a member of Time's "Senior Group", which determined editorial policy, in December.

By early 1948, Chambers had become one of the best known writer-editors at Time. First had come his scathing commentary "The Ghosts on the Roof" (March 5, 1945) on the Yalta Conference (in which Hiss partook). Subsequent cover-story essays profiled Marian Anderson, Arnold J. Toynbee, Rebecca West and Reinhold Niebuhr. The cover story on Marian Anderson (December 30, 1946) proved so popular that the magazine broke its rule of non-attribution in response to readers' letters:

Most Time cover stories are written and edited by the regular staffs of the section in which they appear. Certain cover stories, that present special difficulties or call for a special literary skill, are written by Senior Editor Whittaker Chambers."

Chambers was at the height of his career when the Hiss case broke later that year.

During this period, Chambers and his family became Quakers, attending Pipe Creek Friends Meetinghouse near his Maryland farm.

The Hiss case
On August 3, 1948, Chambers was called to testify before the House Un-American Activities Committee (HUAC). Here he gave the names of individuals he said were part of the underground "Ware group" in the late 1930s, including Alger Hiss. He thus once again named Hiss as a member of the Communist Party, but did not yet make any accusations of espionage. In subsequent HUAC sessions, Hiss testified and initially denied that he knew anyone by the name of Chambers, but on seeing him in person (and after it became clear that Chambers knew details about Hiss's life), said that he had known Chambers under the name "George Crosley". Hiss denied that he had ever been a Communist, however. Since Chambers still presented no evidence, the committee had initially been inclined to take the word of Hiss on the matter. However, committee member Richard Nixon received secret information from the FBI which had led him to pursue the issue. When it issued its report, HUAC described Hiss's testimony as "vague and evasive".

"Red Herring"
The country quickly became divided over the Hiss–Chambers issue. President Harry S Truman, not pleased with the allegation that the man who had presided over the United Nations Charter Conference was a Communist, dismissed the case as a "red herring". In the atmosphere of increasing anti-communism that would later be termed McCarthyism, many conservatives viewed the Hiss case as emblematic of what they saw as Democrats' laxity towards the danger of communist infiltration and influence in the State Department. Many liberals, in turn, saw the Hiss case as part of the desperation of the Republican party to regain the office of president, having been out of power for 16 years. Truman also issued Executive Order 9835, which initiated a program of loyalty reviews for federal employees in 1947.

"Pumpkin Papers"
Hiss filed a $75,000 libel suit against Chambers on October 8, 1948. Under pressure from Hiss's lawyers, Chambers finally retrieved his envelope of evidence and presented it to the HUAC after they subpoenaed them. It contained four notes in Alger Hiss's handwriting, sixty-five typewritten copies of State Department documents and five strips of microfilm, some of which contained photographs of State Department documents. The press came to call these the "Pumpkin Papers" referring to the fact that Chambers had briefly hidden the microfilm in a hollowed-out pumpkin. These documents indicated that Hiss knew Chambers long after mid-1936, when Hiss said he had last seen "Crosley," and also that Hiss had engaged in espionage with Chambers. Chambers explained his delay in producing this evidence as an effort to spare an old friend from more trouble than necessary. Until October 1948, Chambers had repeatedly stated that Hiss had not engaged in espionage, even when Chambers testified under oath. Chambers was forced to testify at the Hiss trials that he had committed perjury several times, which reduced his credibility in the eyes of his critics.

The five rolls of 35 mm film known as the "pumpkin papers" were thought until late 1974 to be locked in HUAC files. Independent researcher Stephen W. Salant, an economist at the University of Michigan, sued the U.S. Justice Department in 1975 when his request for access to them under the Freedom of Information Act was denied. On July 31, 1975, as a result of this lawsuit and follow-on suits filed by Peter Irons and by Alger Hiss and William Reuben, the Justice Department released copies of the "pumpkin papers" that had been used to implicate Hiss. One roll of film turned out to be totally blank due to overexposure, two others are faintly legible copies of nonclassified Navy Department documents relating to such subjects as life rafts and fire extinguishers, and the remaining two are photographs of the State Department documents introduced by the prosecution at the two Hiss trials, relating to U.S./German relations in the late 1930s.

This story, however, as reported by the NY Times in the 1970s, contains only a partial truth. The blank roll had been mentioned by Chambers in his autobiography Witness. But in addition to innocuous farm reports, etc., the documents on the other pumpkin patch microfilms also included "confidential memos sent from overseas embassies to diplomatic staff in Washington, D.C."; worse, those memos had originally been transmitted in code, which, thanks to their (presumably) having both coded originals and the translations forwarded by Hiss, the Soviets now could easily understand.

Perjury
Hiss could not be tried for espionage at this time, because the evidence indicated the offense had occurred more than ten years prior to that time, and the statute of limitations for espionage was five years. Instead, Hiss was indicted for two counts of perjury relating to testimony he had given before a federal grand jury the previous December. There he had denied giving any documents to Whittaker Chambers, and testified he had not seen Chambers after mid-1936.

Hiss was tried twice for perjury. The first trial, in June 1949, ended with the jury deadlocked eight to four for conviction. In addition to Chambers's testimony, a government expert testified that other papers typed on a typewriter belonging to the Hiss family matched the secret papers produced by Chambers. An impressive array of character witnesses appeared on behalf of Hiss: two U.S. Supreme Court justices, Felix Frankfurter and Stanley Reed, former Democratic presidential nominee John W. Davis and future Democratic presidential nominee Adlai Stevenson. Chambers, on the other hand, was attacked by Hiss's attorneys as "an enemy of the Republic, a blasphemer of Christ, a disbeliever in God, with no respect for matrimony or motherhood". In the second trial, Hiss's defense produced a psychiatrist who characterized Chambers as a "psychopathic personality" and "a pathological liar".

The second trial ended in January 1950 with Hiss found guilty on both counts of perjury. He was sentenced to five years in prison.

After the Hiss case
Chambers had resigned from Time in December 1948. After the Hiss Case, he wrote a few articles for Fortune, Life, and Look magazines.

Witness
In 1952, Chambers's book Witness was published to widespread acclaim. The book was a combination of autobiography and a warning about the dangers of Communism. Arthur Schlesinger, Jr. called it "a powerful book". Ronald Reagan credited the book as the inspiration behind his conversion from a New Deal Democrat to a conservative Republican. Witness was a bestseller for more than a year and helped pay off Chambers' legal debts, though bills lingered ("as Odysseus was beset by a ghost").

National Review
In 1955, William F. Buckley, Jr. started the magazine National Review, and Chambers worked there as senior editor, publishing articles there for a little over a year and a half (October 1957–June 1959). The most widely cited article to date is a scathing review, "Big Sister is Watching You", of Ayn Rand's Atlas Shrugged.

In 1959, after resigning from National Review, Chambers and his wife visited Europe, the highlight of which was a meeting with Arthur Koestler and Margarete Buber-Neumann at Koestler's home in Austria. That fall, he recommenced studies at Western Maryland College (new McDaniel College) in Westminster, Maryland.

Death
Chambers died of a heart attack on July 9, 1961, at his 300-acre (1.2 km2) farm in Westminster, Maryland. He had suffered from angina since the age of 38 and had had several heart attacks previously.

Cold Friday, his second memoir, was published posthumously in 1964 with the help of Duncan Norton-Taylor. The book prophetically predicted that the fall of Communism would start in the satellite states surrounding the Soviet Union in Eastern Europe. A collection of his correspondence with William F. Buckley, Jr., Odyssey of a Friend, was published in 1968; a collection of his journalism—including several of his Time and National Review writings, was published in 1989 as Ghosts on the Roof: Selected Journalism of Whittaker Chambers.

Legacy
Chambers's book Witness is on the reading lists of the Heritage Foundation, The Weekly Standard, The Leadership Institute, and the Russell Kirk Center for Cultural Renewal. He is regularly cited by conservative writers such as Heritage's president Edwin Feulner.

In 1984, President Ronald Reagan posthumously awarded Chambers the Presidential Medal of Freedom, for his contribution to "the century's epic struggle between freedom and totalitarianism". In 1988, Interior Secretary Donald P. Hodel granted national landmark status to the Pipe Creek Farm. In 2001, members of the George W. Bush Administration held a private ceremony to commemorate the hundredth anniversary of Chambers's birth. Speakers included William F. Buckley, Jr.

In 2007, John Chambers revealed that a library containing his father's papers should open in 2008 on the Chambers farm in Maryland. He indicated that the facility will be available to all scholars and that a separate library, rather than one within an established university, is needed to guarantee open access.

On 6 January 2010, the Medfield farmhouse at Pipe Creek Farm, in which Whittaker Chambers wrote Witness, was severely damaged by a fire that began in an electrical panel at the front entrance of the home.

In 2011, author Elena Maria Vidal interviewed David Chambers about his grandfather's legacy. Versions of the interview were published in the National Observer and The American Conservative.

Friday, December 18, 2015

Planned Parenthood v. Casey

Planned Parenthood v. Casey, 505 U.S. 833 (1992) was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state statutory provisions regarding abortion were challenged. The case was a turn from the decision in Roe v. Wade to instead reflect the individual's choice in abortion as a responsibility to the community. Its aim was to make the woman's decision more thoughtful and thorough in theory. The Court's plurality opinion upheld the constitutional right to have an abortion while altering the standard for analyzing restrictions on that right. Applying its new standard of review, the Court upheld four regulations and invalidated one, the regulation of spousal notification.

In Casey, the plaintiffs challenged five provisions of the Pennsylvania Abortion Control Act of 1982 authored by Rep. Stephen F. Freind, arguing that the provisions were unconstitutional under Roe v. Wade. The Court in Roe was the first to establish abortion as a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. The majority in Roe further held that women have a privacy interest protecting their right to abortion embedded in the liberty clause of the Fourteenth Amendment. The five provisions at issue in Casey are summarized below.

§ 3205 Informed Consent. A woman seeking abortion had to give her informed consent prior to the procedure. The doctor had to provide her with specific information at least 24 hours before the procedure was to take place, including information about how the abortion could be detrimental to her health and about the availability of information about the fetus.
§ 3209 Spousal Notice. A woman seeking abortion had to sign a statement stating that she had notified her husband prior to undergoing the procedure, unless certain exceptions applied.
§ 3206 Parental Consent. Minors had to get the informed consent of at least one parent or guardian prior to the abortion procedure. Alternatively, minors could seek judicial bypass in lieu of consent.
§ 3203 "Medical Emergency" definition. Defining a medical emergency as
"[t]hat condition, which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function."

§§ 3207(b), 3214(a), and 3214(f) Reporting Requirements. Certain reporting and record keeping mandates were imposed on facilities providing abortion services.
The case was a seminal one in the history of abortion decisions in the United States. It was the first case that provided an opportunity to overturn Roe since the two liberal Justices, William Brennan and Thurgood Marshall, were replaced with the Bush-appointed Justices David Souter and Clarence Thomas. Both were viewed as ostensible conservatives compared with their predecessors. This left the Court with eight Republican-appointed justices—six of whom had been appointed by Presidents Reagan or Bush, both of whom were well known for their opposition to Roe. Finally, the only remaining Democratic appointee—Justice Byron White—had been one of the two dissenters from the original Roe decision.

At this point, only two of the Justices were obvious supporters of Roe v. Wade: Blackmun, the author of Roe, and Stevens, who had joined opinions specifically reaffirming Roe in City of Akron v. Akron Center for Reproductive Health and Thornburgh v. American College of Obstetricians and Gynecologists.

The case was argued by ACLU attorney Kathryn Kolbert for Planned Parenthood, with Linda J. Wharton serving as Co-Lead Counsel. Pennsylvania attorney general Ernie Preate argued the case for the State. Upon reaching the Supreme Court, the United States joined the case as amicus curiae and Solicitor General Ken Starr of the Bush Administration defended the Act in part by urging the Court to overturn Roe as having been wrongly decided.

The District Court's ruling
The plaintiffs were five abortion clinics, a class of physicians who provided abortion services, and one physician representing himself independently. They filed suit in the U.S. District Court for the Eastern District of Pennsylvania to enjoin the state from enforcing the five provisions and have them declared facially unconstitutional. The District Court, after a three-day bench trial, held that all the provisions were unconstitutional and entered a permanent injunction against Pennsylvania's enforcement of them.

Third Circuit Court of Appeals decision
The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement. The Third Circuit concluded that the husband notification was unduly burdensome because it potentially exposed married women to spousal abuse, violence, and economic duress at the hands of their husbands. Then-Circuit Judge Samuel Alito sat on that three-judge appellate panel and dissented from the court's invalidation of that requirement.

The Supreme Court's consideration
At the conference of the Justices two days after oral argument, Justice Souter defied expectations, joining Justices O'Connor, Stevens, and Blackmun, who had likewise refused to do so three years earlier in Webster v. Reproductive Health Services. This resulted in a precarious five Justice majority consisting of Chief Justice William Rehnquist, Byron White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas that favored upholding all five contested abortion restrictions. However, Justice Kennedy changed his mind shortly thereafter and joined with fellow Reagan-Bush justices Sandra Day O'Connor and David Souter to write a plurality opinion that would reaffirm Roe.

The Court's opinions
Except for the three opening sections of the O'Connor-Kennedy-Souter opinion, Casey was a divided judgment, as no other sections of any opinion were joined by a majority of justices. However, the plurality opinion jointly written by Justices Souter, O'Connor, and Kennedy is recognized as the lead opinion with precedential weight because each of its parts was concurred in by at least two other Justices, albeit different ones for each part.

The O'Connor, Kennedy, and Souter plurality opinion
The authors of the plurality opinion began by noting the U.S. government's previous challenges to Roe v. Wade:

"Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe."
Upholding the "Essential Holding" in Roe
The plurality opinion stated that it was upholding what it called the "essential holding" of Roe. The essential holding consists of three parts: (1) Women have the right to choose to have an abortion prior to viability and to do so without undue interference from the State; (2) the State can restrict the abortion procedure post viability, so long as the law contains exceptions for pregnancies which endanger the woman’s life or health; and (3) the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. The plurality asserted that the fundamental right to abortion is grounded in the Due Process Clause of the Fourteenth Amendment, and the plurality reiterated what the Court had said in Eisenstadt v. Baird: "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

Stare Decisis Analysis
The plurality's opinion included a thorough discussion on the doctrine of stare decisis, and provided a clear explanation for why the doctrine had to be applied in Casey with regards to Roe. The authors of the plurality opinion emphasized that stare decisis had to apply in Casey because the Roe rule had not been proven intolerable; the rule had become subject "to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation"; the law had not developed in such a way around the rule that left the rule "no more than a remnant of abandoned doctrine"; and the facts had not changed, nor viewed differently, to "rob the old rule of significant application or justification." The plurality acknowledged that it was important for the Court to stand by prior decisions, even those decisions some found unpopular, unless there was a change in the fundamental reasoning underpinning the previous decision. The authors of the plurality opinion, making a special note of the precedential value of Roe v. Wade, and specifically how women's lives were changed by that decision, stated,

"The sum of the precedential enquiry to this point shows Roe's underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant."

The authors of the plurality opinion also acknowledged the need for predictability and consistency in judicial decision making. For example,

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

The plurality went on to analyze past judgments refusing to apply the doctrine of stare decisis, such as Brown v. Board of Education. There, the authors of the plurality opinion explained, society's rejection of the "Separate but Equal" concept was a legitimate reason for the Brown v. Board of Education court’s rejection of the Plessy v. Ferguson doctrine. Emphasizing the lack of need to overrule the essential holding of Roe, and the Court's need to not be seen as overruling a prior decision merely because the individual members of the Court had changed, the authors of the plurality opinion stated,

"Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973.”

The plurality further emphasized that the Court would lack legitimacy if it frequently changed its Constitutional decisions, stating,

"The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make."

Since the O'Connor-Kennedy-Souter plurality overruled some portions of Roe v. Wade despite its emphasis on stare decisis, Chief Justice Rehnquist in dissent argued that this section was entirely obiter dicta. All these opening sections were joined by Justices Blackmun and Stevens for the majority. The remainder of the decision did not command a majority, but at least two other Justices concurred in judgment on each of the remaining points.

Viability and the undue burden standard
Although upholding the "essential holding" in Roe, and recognizing that women have some constitutional liberty to terminate their pregnancies, the O'Connor-Kennedy-Souter plurality overturned the Roe trimester framework in favor of a viability analysis. The Roe trimester framework completely forbade states from regulating abortion during the first trimester of pregnancy, permitted regulations designed to protect a woman's health in the second trimester, and permitted prohibitions on abortion during the third trimester (when the fetus becomes viable) under the justification of fetal protection, and so long as the life or health of the mother was not at risk. The plurality found that continuing advancements in medical technology had proven that a fetus could be considered viable at 22 or 23 weeks rather than at the 28 weeks previously understood by the Court in Roe. The plurality thus redrew the line of increasing state interest at viability because of increasing medical accuracy about when viability takes place. Likewise, the authors of the plurality opinion felt that viability was "more workable" than the trimester framework.

Under the new viability framework, the plurality held that at the point of viability and subsequent to viability, the state could promote its interest in the "potentiality of human life" by regulating, or possibly proscribing, abortion "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Prior to viability, the plurality held, the State can show concern for fetal development, but it cannot pose an undue burden on a woman's fundamental right to abortion. The plurality reasoned that the new pre- and post-viability line would still uphold the essential holding of Roe, which recognized both the woman's constitutionally protected liberty, and the State's "important and legitimate interest in potential life."

In replacing the trimester framework with the viability framework, the plurality also replaced the strict scrutiny analysis under Roe, with the "undue burden" standard previously developed by O'Connor in her dissent in Akron v. Akron Center for Reproductive Health. A legal restriction posing an undue burden is one that has "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." An undue burden is found even where a statute purports to further the interest of potential life or another valid state interest, if it places a substantial obstacle in the path of a woman's fundamental right to choice. In applying this new standard, the plurality overruled City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), each of which applied "strict scrutiny" to abortion restrictions.

Applying this new standard to the challenged Pennsylvania Act, the plurality struck down the spousal notice requirement, finding that for many women, the statutory provision would impose a substantial obstacle in their path to receive an abortion. The plurality recognized that the provision gave too much power to husbands over their wives ("a spousal notice requirement enables the husband to wield an effective veto over his wife's decision"), and could worsen situations of spousal and child abuse. In finding the provision unconstitutional, the authors of the plurality opinion clarified that the focus of the undue burden test is on the group "for whom the law is a restriction, not the group for whom the law is irrelevant." Otherwise stated, courts should not focus on what portion of the population is affected by the legislation, but rather on the population the law would restrict. The plurality upheld the remaining contested regulations – the State's informed consent and 24-hour waiting period, parental consent requirements, reporting requirements, and the "medical emergencies" definition – holding that none constituted an undue burden.

Notably, when the authors of the plurality discuss the right to privacy in the joint opinion, it is all within the context of a quotation or paraphrase from Roe or other previous cases. The authors of the plurality opinion, do not, however, explicitly or implicitly state that they do not believe in a right to privacy, or that they do not support the use of privacy in Roe to justify the fundamental right to abortion. Justice Blackmun would not agree with an implication asserting otherwise, stating "[t]he Court today reaffirms the long recognized rights of privacy and bodily integrity."

The concurrence/dissents
Justices Harry Blackmun and John Paul Stevens, who both joined the plurality in part, also each filed opinions concurring in the Court's judgment in part and dissenting in part. Chief Justice William Rehnquist filed an opinion concurring in the Court's judgment in part and dissenting in part, which was joined by Justices Byron White, Antonin Scalia, and Clarence Thomas, none of whom joined any part of the plurality. Justice Scalia also filed an opinion concurring in the judgment in part and dissenting in part, which was also joined by Rehnquist, White, and Thomas.


Rehnquist and Scalia each joined the plurality in upholding the parental consent, informed consent, and waiting period laws. However, they dissented from the plurality's decision to uphold Roe v. Wade and strike down the spousal notification law, contending that Roe was incorrectly decided. In Chief Justice Rehnquist's opinion, he questioned the fundamental right to an abortion, the "right to privacy," and the strict scrutiny application in Roe. He also questioned the new "undue burden" analysis under the plurality opinion, instead deciding that the proper analysis for the regulation of abortions was rational-basis.

In Justice Scalia's opinion, he also argued for a rational-basis approach, finding that the Pennsylvania statute in its entirety was constitutional. He argued that abortion was not a "protected" liberty, and as such, the abortion liberty could be intruded upon by the State. To this end, Justice Scalia concluded this was so because an abortion right was not in the Constitution, and "longstanding traditions of American society" have allowed abortion to be legally proscribed. Rehnquist and Scalia joined each other's concurrence/dissents. White and Thomas, who did not write their own opinions, joined in both.

Stevens and Blackmun
Justices Blackmun and Stevens wrote opinions in which they approved of the plurality's preservation of Roe and rejection of the spousal notification law. They did not, however, agree with the plurality's decision to uphold the other three laws at issue.

Justice Stevens concurred in part and dissented in part. Justice Stevens joined the plurality's preservation of Roe and rejection the spousal notification law, but under his interpretation of the undue burden standard ("[a] burden may be 'undue' either because the burden is too severe or because it lacks a legitimate rational justification"), he would have found the information requirements in §§ 3205(a)(2)(i)–(iii) and § 3205(a)(1)(ii), and the 24-hour waiting period in §§ 3205(a)(1)–(2) unconstitutional. Instead of applying an undue burden analysis, Justice Stevens would have preferred to apply the analyses in Akron and Thornburgh, two cases that had applied a strict scrutiny analysis, to reach the same conclusions. Justice Stevens also placed great emphasis on the fact that women had a right to bodily integrity, and a constitutionally protected liberty interest to decide matters of the "highest privacy and the most personal nature." As such, Justice Stevens felt that a State should not be permitted to attempt to "persuade the woman to choose childbirth over abortion"; he felt this was too coercive and violated the woman's decisional autonomy.

Justice Blackmun concurred in part, concurred in the judgment in part, and dissented in part. He joined the plurality's preservation of Roe – of which he wrote the majority – and he too rejected the spousal notification law. Justice Blackmun, however, argued for a woman's right to privacy and insisted, as he did in Roe, that all non-de-minimis abortion regulations were subject to strict scrutiny. Using such an analysis, Justice Blackmun argued that the content-based counseling, the 24-hour waiting period, informed parental consent, and the reporting regulations were unconstitutional. He also dissented from the plurality's undue burden test, and instead found his trimester framework "far less manipulable" and "administrable." Blackmun even went further in his opinion than Stevens, sharply attacking and criticizing the anti-Roe bloc of the Court.