Men in Black (8 page)
Authors: Mark R. Levin
During his first full term on the Court, Blackmun voted with Burger 89 percent of the time.
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Blackmun and Burger, who had been close friends in childhood, were called the Minnesota Twins. Blackmun resented the nickname, believing it unfairly implied he was dominated by Burger. Soon after he was on the Court, Burger assigned Blackmun to write the opinion in
Roe
. It was a major opportunity for Blackmun to prove his intellectual heft and display his constitutional prowess.
According to Bob Woodward’s book
The Brethren
, Blackmun suffered from a profound sense of insecurity:
From his first day at the Court, Blackmun had felt unworthy, unqualified, unable to perform up to standard. He felt he could equal the Chief and [Thurgood] Marshall, but not the others. He became increasingly withdrawn and professorial. He did not enjoy charting new paths for the law. He was still learning. The issues were too grave, the information too sparse. Each new answer was barely answered, even tentatively, when two more questions appeared on the horizon. Blackmun knew that his colleagues were concerned about what they perceived as his indecisiveness.
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Blackmun also brought enormous respect for doctors to the Court from his many years as counsel for the Mayo Clinic. He saw abortion laws as state meddling with a doctor’s professional judgment.
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In
Roe
, Blackmun plunged himself into the history of abortion and even returned to the libraries of the Mayo Clinic to research the medical opinion. Blackmun had other influences working on him—most notably his wife. Nixon had been quite prescient about the effect of Blackmun’s wife on his judicial role. While Blackmun was dithering over the opinion, Dorothy Blackmun told one of his pro–abortion rights clerks “that she was doing everything she could to encourage her husband in that direction. ‘You and I are working on the same thing,’ she said. ‘Me at home and you at work.’”
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Blackmun later claimed that she (and his three daughters) never tried to influence his decision.
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Other justices were also predisposed to dismantle the nation’s abortion laws, including another Nixon appointee, Lewis Powell. As Bob Woodward noted: “Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Powell felt he would just have to vote his ‘gut.’…When he returned to Washington, he took one of his law clerks to lunch…. The abortion laws, Powell confided, were ‘atrocious.’ His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote.”
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Powell’s vote, in other words, was not dictated by a serious effort to interpret the Constitution. Instead, he made a policy decision and then set out to justify it.
Justice Potter Stewart was also in favor of striking down abortion laws. Although he had some misgivings, Stewart thought abortion reform was necessary for various policy reasons.
As Stewart saw it, abortion was becoming one reasonable solution to population control. Poor people, in particular, were consistently victims of archaic and artificially complicated laws….
Still, these were issues of the very sort that made Stewart uncomfortable. Precisely because of their political nature, the Court should avoid them. But the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court’s being involved in this kind of controversy, this was perhaps an instance where it had to be involved.
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Blackmun acknowledged some of the policy issues at stake in the abortion debate, like overpopulation, in the introduction of his opinion:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions on abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
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Nice speech, but it had nothing to do with a constitutional analysis of
Roe
. From this inauspicious beginning, Blackmun began a comprehensive, multi-page review of the history of abortion from the beginning of time to the present day. He led with the attitudes of the Persian Empire, the ancient Greeks, and the ancient Romans and tried to divine the real meaning behind the Hippocratic Oath. He moved on to the old common law of England, and examined Christian theology and the works of Catholic theologian Thomas Aquinas. From Europe, he proceeded to the history of abortion law in the individual states. Not stopping there, he outlined the positions of the American Medical Association since the 1800s, as well as the position of the American Public Health Association and the American Bar Association as expressed in the ABA House of Delegates. Once the history lesson was completed, Blackmun sought to refute the various policy reasons given for America’s abortion laws.
Finally, Blackmun focused on his legal rationale in
Roe
. He began with a review of the right to privacy, writing, in part:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however…the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment…in the Fourth and Fifth Amendments…in the penumbras of the Bill of Rights…in the Ninth Amendment…or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment…. These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty”…are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage…procreation…contraception…family relationships…and child rearing and education….
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Blackmun
felt
that the right of privacy, wherever it comes from, includes the right to abortion. Do not look any further for legal argument amidst the voluminous opinion, because it does not exist. Perhaps the extensive historical analysis was included to compensate for the lack of legal analysis.
But Blackmun went further, and the Court followed. Not satisfied to strike down the Texas law, Blackmun began to write what seemed to be a new federal statute. According to Blackmun’s opinion, a woman’s right to abortion could only be abridged by a compelling state interest. In effect, Blackmun argued that there was an inverse relationship between a woman’s interest and the state’s interest that ranged across a spectrum from conception to birth. Therefore, the state’s interest at conception was minimal but increased as the pregnancy progressed, reaching its peak at the end of the pregnancy. A woman’s interest, paramount at conception, began to give some ground to the state’s interest in protecting the fetus as it matured toward being able to live outside of the mother. But Blackmun specifically declared that the unborn child was not a “person” under the Fourteenth Amendment, and thus had no equal protection rights.
Blackmun wrote that what really mattered was the unborn baby’s viability outside the womb. A fetus capable of life outside the womb, Blackmun believed, was more deserving of protection than one in its earliest stages of development. He also shot down Texas’s attempt to define life as beginning at conception, which “by adopting one theory of life,”
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would have then allowed Texas to extend its interest to the earliest stage of pregnancy. Blackmun wrote, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
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Blackmun gave deference to medicine, philosophy, and theology (from his own perspective), but not to the Constitution, the people, the states, or the other branches of the federal government. In truth, Blackmun did establish, at least for constitutional purposes, when life begins by recognizing abortion as a constitutionally protected right to privacy. He did precisely what he lectured should not be done.
Blackmun constructed a hyper-technical trimester analysis to break down the rights of the mother and the state. In the first trimester, the decision to abort must be left to the woman’s physician. In the second trimester, the state may regulate abortion procedures to promote its interest in the mother’s health. In the third trimester, in the interest of protecting the unborn child, the state can regulate and even ban abortion, except where, by medical judgment, it is necessary to preserve the mother’s life or health.
The trade-offs inherent in the trimester system smack of the bargaining and dealing that legislators engage in to pass a highway construction bill. It is no wonder that activists justify
Roe
on policy and not legal grounds. But since this policy decision was disguised as a constitutional pronouncement by the Court, American law has been prevented from keeping up with rapid improvements in medical technology. Repeatedly, the Court has shown no willingness to recognize an earlier concept of viability to limit the reach of the abortion right.
Of course, from an analytical and logical point of view, a ban on abortion could have been upheld regardless of whether a fetus is protected by the Fourteenth Amendment as a “person.” Americans are fined or imprisoned for destroying endangered wildlife or even wetlands, and these laws have been ruled constitutional.
In any event, Blackmun’s stated deference to medicine, in which a doctor can authorize or perform an abortion for the health of the mother, belies his third-trimester framework. This point was driven home in 2000, in
Stenbergv. Carhart
, when the Supreme Court struck down a Nebraska law prohibiting partial-birth abortion.
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Justice Stephen Breyer, in writing the majority opinion, stated, “We conclude [that the law banning partial-birth abortions violates the Constitution] for two independent reasons. First, the law lacks any exception ‘for the preservation of the…health of the mother.’ Second, it ‘imposes undue burden on a woman’s ability’ to choose.”
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Consequently, the Supreme Court upheld a particularly vicious method of performing an abortion.
A Court historian believes Blackmun’s leftward drift from moderate to liberal jurist was a result of
Roe
. “It was not just the criticism and the hate mail he received, but also thank-you letters he received from women. Over time, he came to think he had done a great thing for women, and it made him much more attuned to the cause of protecting individual rights.”
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Another way to describe Blackmun’s shift is less charitable: He was moved and thereby seduced by public opinion in much the same way a politician is. There is evidence that Blackmun was particularly vulnerable to this type of lobbying. Chai Feldblum clerked for Blackmun during the term after he had issued his dissent in
Bowers v. Hardwick
(1986), in which he argued that the right to privacy protected homosexual sodomy. His office was once again flooded with letters from across the country.
“I believe he was radicalized by the response to the case,” says Feldblum, now a professor of disability law at the Georgetown University Law Center in Washington, D.C. “The hate mail told him that prejudice existed and sodomy laws were part of the problem. The fan mail came from gay people who said things like, ‘I am gay, and your dissent meant so much to me.’ I’ll never forget how much that meant to him.”
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There is something truly absurd and, frankly, repugnant, about a judge being swayed by fan mail.
After
Roe
, Blackmun saw his role as championing a cause, not interpreting the Constitution. At the end of his career, he dramatically announced, without a trace of irony, that he was morally opposed to the death penalty. “From this day forward, I no longer shall tinker with the machinery of death,”
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said the author of
Roe
, as if his ruling in
Roe
did not constitute a tinkering with the machinery of death.
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Blackmun continued to issue self-congratulatory, pompous, and maudlin statements about
Roe
’s importance and vulnerability. “If it goes down the drain, I’d still like to regard
Roe v. Wade
as a landmark in the progress of the emancipation of women,”
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he said. In 1992, with a presidential election looming, Blackmun made a dramatic call—
within a Supreme Court opinion
—to the supporters of abortion. He piously intoned, “And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light!”
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