The Corner

Justice Blackmun on Roe v. Wade: A Doctor’s Rights Case, Not Women’s Rights

Ron Rotunda, a law professor at Chapman University, has written a fascinating piece on the Supreme Court’s 1973 Roe v. Wade decision that was issued 41 years ago today. His Chicago Tribune article reveals his notes of a 1984 conversation about Roe he and a group of other young lawyers had at an Aspen Institute conference with Harry Blackmun, the author of the majority opinion in Roe, and Blackmun’s wife. Rotunda says that Blackmun was aware that he was taking notes.

“One usually doesn’t speak about the conference of the U.S. Supreme Court,” Blackmun began as he read from his own notes, but he said he thought it was important to “promote understanding of the Supreme Court.”

I decided it,” he said of the infamous case.

His decision lives with us today. NRO’s Ed Whelan has said Blackmun’s majority opinion “is rivaled only by Dred Scott as the worst opinion in Supreme Court history.” One of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”

The entire Rotunda piece is worth reading, but here are some highlights:

Blackmun said he realized the Court “had a bull by the horns” in the Roe case. And he was worried by the first of two oral arguments (there was a second, after Justices Lewis Powell and William Rehnquist joined the court). According to Rotunda’s notes, Blackmun felt

the first [oral] argument was poor. . . . Blackmun was “disturbed” that the parties did not discuss the Hippocratic oath. “One of the woman oralists, in reaction to my question, said that it was irrelevant.” However, some versions of the oath say doctors cannot prescribe abortion and Blackmun considered that significant.

Blackmun said Justice Byron White wrote a bitter dissent, referring to “raw judicial power.” With a strong emphasis in his voice, Blackmun quipped: “I made Byron eat those words later in other cases.” When White announced his dissent, “White was emotional.” Blackmun asked rhetorically: “Why was White so strong against my view? His upbringing in modest circumstances? Or his wife’s influence?”

Blackman said in 1984 he had received almost 70,000 letters on Roe and he had read almost all of them. The justice said he was “surprised” at the popular reaction against Roe. He argues that “academic opinion was generally adverse” to the idea the decision wasn’t grounded in law — and also mentioned that he believes it unconstitutional for the government to fail to fund abortions.

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

Amazingly, given how much the Roe decision is cast in terms of women’s freedom and privacy Blackmun (a former lawyer for the Mayo Clinic) felt it was actually a “doctor’s rights case.”

Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case. In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom [sic] Blackmun assumed was male.

Blackmun concluded his talk with the Aspen Institute group by saying: “I make no apologies for the scholarship or result in the opinion.” His last words on Roe were: “I’m really not too bad a guy after all.” 

Blackmun died in 1999, five years after he retired from the court. His replacement was Stephen Breyer, an appointee of President Bill Clinton.

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