As we await the Supreme Court’s abortion decision, here’s a story about what happens when people proceed from suite-level understanding that doesn’t connect with street-level reality.
During the 1950s, Justice-to-be Harry Blackmun was “resident counsel” at the Mayo Clinic in Rochester, Minn. In 1972, as Blackmun contemplated writing the Roe v. Wade decision, he spent two quiet weeks in the Mayo library. Blackmun read about the history of state abortion statutes, attitudes toward abortion among medical and professional groups, and speculation concerning the history of the Hippocratic Oath.
As pro-life lawyer Clarke Forsythe put it, “when Justice Blackmun thought of abortion providers, he thought of his [Mayo] friends and colleagues. . . . He assumed that doctors just like them would step in to do abortions.” Abortion-supporting historian David Garrow reports similarly that Blackmun thought of abortion “in the medical framework of Rochester, Minnesota. He imagined abortions would be performed by a family physician or in a hospital.”
Anyone who played a Roe drinking game that included a toast to every mention of “physician” would soon be staggering. Justice Blackmun listed psychological and physical “factors the woman and her responsible physician necessarily will consider in consultation.” He noted decision-making by “the woman and her responsible physician . . . the attending physician in consultation with his patient . . . the medical judgment of the woman’s attending physician,” and so on.
It’s too bad Blackmun didn’t break away from his library research for even a day to visit an abortion center in a state that had already legalized widespread abortion. For example, he could have visited the Center for Reproductive and Sexual Health (CRASH) in a converted townhouse on Manhattan’s Upper East Side. New York’s liberal abortion statute went into effect on July 1, 1970, and six months later the center was doing 120 abortions a day.
Physicians performed ten or 15 abortions daily, and were paid at the rate of $70 to $90 per hour. One obstetrician-gynecologist would practice his specialty in Lexington, Ky., from Monday to Friday, then fly up to New York City, work five shifts of eight hours each at the clinic over the weekend, and then fly back to resume his practice on Monday morning. He earned $185,000 in the one year he worked at the clinic.
The street-level reality mocked the “responsible physician” language in Blackmun’s opinion. Doctor-patient consultation? Typically, zero. Consideration of psychological factors? The abortionists knew nothing about the psychology of the women they first saw with their feet in stirrups.
Blackmun’s opinion concluded: “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment. . . . The abortion decision in all its aspects is inherently, and primarily, a medical decision.” No: at street-level it was an assembly-line (actually, a disassembly line) decision.
Georgetown University law professor Mark V. Tushnet, in 1973 a clerk for abortion-supporting Justice Thurgood Marshall, said the justices “were not thinking long-term with an overall vision.” But all they needed was the willingness to leave the library, and enough vision to see what was already occurring at street level: “Few women sought abortions from their family or personal physician and most sought abortions from high-volume abortion providers whom they had never seen before.”
Marvin Olasky is co-author of the forthcoming The Story of Abortion in America: A Street-Level History, 1652– 2022.