The following article, based on the late Justice Blackmun's papers at the Library of Congress, appeared in slightly different form in Human Life Review, Summer 2004. Copyright © 2004 by Mary Meehan.
Justice Blackmun and the Little People
Harry A. Blackmun, the late Supreme Court justice, once appeared before his colleagues to request admission of two family members to the Supreme Court bar. According to his daughter Sally, the experience gave him a new view of his fellow justices up on the bench: "eight old, grumpy, stern men..."(1)
Blackmun himself was often dour in appearance, and sometimes grumpy at Court. He routinely labored days, nights and weekends over cases. A perfectionist, he made his crushing workload even heavier by personally checking all citations for the opinions he wrote, instead of having his law clerks check them. Blackmun was so tightly-wound that he could erupt if someone left an office window open at night, failed to sharpen his pencils properly, or interrupted him at work. "His outbursts varied in intensity and usually passed quickly," according to a famous inside account of the Supreme Court, The Brethren. "....But they made life more difficult; they added an extra tension."(2)
Nancy Blackmun Coniaris, the oldest of Blackmun's three daughters, loved her father but complained that he had been "married to the job as far back as when I was in kindergarten." She said that he was "too often not an easy father, and not an easy man [for her mother] to be married to" and that he "barely had what most of us would consider a personal life." Coniaris, a psychologist, also remarked that there "was often a shadow of pessimism, of sadness, of intermittent depression about him." She traced this to difficulties in his childhood, especially the early death of a baby brother, the death of his best boyhood friend, and an embezzlement scandal that led to the suicide of one uncle and the imprisonment of another.(3)
The Other Side
There was, though, another side of Harry Blackmun, as shown in his recently-opened papers at the Library of Congress. There was much to like about him, and a good deal to admire.
Born in 1908, the future justice grew up in a working-class neighborhood in St. Paul, Minnesota. When he was a toddler, his baby brother died days after birth; a sister was born when Harry was eight. They apparently had a fairly normal childhood, although their father found it hard to make a living. They were brought up in the Methodist faith, a commitment that young Harry would retain through life. As an adult, according to a daughter, he would sit "at the piano with his mother in her house in St. Paul, the two of them playing Methodist hymns and singing together."
Harry's grandfathers, both Civil War veterans of the Union Army, were liberal Republicans. He would follow that tradition, although not in a very partisan way. He would vote at least once for Democrat Franklin D. Roosevelt for President, and would ring doorbells for Democrat Hubert H. Humphrey in a campaign for mayor of Minneapolis.
Harry won a tuition scholarship to Harvard College, where he majored in mathematics and graduated summa cum laude, and then attended Harvard Law School. But he had to work many jobs to pay for room and board, and he could not afford to go home even at Christmas. Frugality became so much a part of him that years later, as a lawyer serving on a Methodist publication board, he complained about high costs of the board's annual meetings. "I am a conservative old fuddy-duddy," he wrote, "who is still impressed with how hard some of these dollars are for poor people to part with."(4)
Blackmun never forgot his roots. Nor did he lose his unpretentious Midwestern ways after arriving as a new Supreme Court justice in Washington, D.C., a city of self-importance and the flaunting of wealth and power. He often referred to himself as "Old Number Three" because he was President Richard Nixon's third choice for a Supreme Court vacancy. After his retirement, when he was asked about his strong work ethic, he suggested that possibly he had "worked long hours because I was dumber than the rest of the guys and took maybe longer to come to a conclusion." For years he drove a little Volkswagen Beetle to work, and even to social affairs at the White House. On weekdays he had breakfast with his law clerks in the Court's public cafeteria, discussing anything from news events and baseball scores to his youthful experience of working on a dude ranch in Wyoming.
When the Chief Justice and the other senior justices were away from the Court on one occasion, and Blackmun felt "a little mischievous," he circulated a memo identifying himself as "Acting Chief Justice" and adding:
It occurs to me that in this happy state of affairs, things ought to be done, such as reassigning cases and striking some as too difficult to decide, setting July and August argument sessions, closing the building now for a week or two, scheduling square dancing in the Great Hall, and obtaining a Court cat to chase down the mice and Boris, who I am told is the rat upstairs. I have discussed this with many who labor in the building, and find unanimous consent for all these worthy projects....(5)
Although he worked his clerks very hard, as most justices do, Blackmun was courteous and kind to them and genuinely interested in their families and careers. The clerks loved and revered him. He was interested in the working conditions of other Court employees as well. He helped obtain shelters for Court police who had guard duty outside, often in bad weather, and chairs for inside staff who were stationed in the corridors for long hours. Concerned about the backbreaking workload and the high tension of the two months before the Court's summer recess, on several occasions he arranged spring concerts to relieve the general stress.(6)
While often unavailable to family because of his workaholic ways, Blackmun was a good father when he was paying attention to that role. His daughter Nancy recalled that when she was in the eighth grade, "a difficult year for most new teenagers, he smoothed my path by reading me Sherlock Holmes and helping me prepare for, of all things, home economics quizzes. We got an A, of course." A writer who stressed Blackmun's grumpy side at Court also noted that he "could be relaxed, charming, and cheerful" when away from work. He quoted a friend of the justice who remarked that "she was amused to see Blackmun and his wife together. 'They teased each other and had fun like two teenagers,' she said." In his rare times of unwinding, the Justice enjoyed baseball, whodunits, classical music, long walks, and canoeing.(7)
But legal work had always been the center of his adult life. He was, if anything, even more conscientious about it after his appointment to the Supreme Court. That Court, he said at his 1970 confirmation hearing, "is the terrible end of the line of litigation. There is no further place to go. The decision had better be right." He often stressed the effects of the Court's decisions on the "little people": a child badly abused by his father; Haitian refugees facing forced return to their extremely dangerous country; a death-row prisoner who claimed innocence. These concerns were not abstract or academic. He had once visited Haiti with a physician friend who had warned that it "won't be a happy trip." Blackmun had also visited many prisons because the Mayo Clinic, which he served as resident counsel for nine years, "did a lot of surgery for the prison systems...so I wanted to get out and see" them. He had also visited mental institutions where patients "were treated like animals." Especially during his later years on the Court, his clerks and other admirers saw him as a champion of the little people and the outsiders of America.(8)
Of course, not everyone agreed with Blackmun's legal conclusions on cases involving little people. Some, such as legal writer Jeffrey Rosen, believed that "feeling deeply is no substitute for arguing rigorously" and that Blackmun "often misinterpreted or ignored the underlying constitutional issues." But Rosen respected the Justice's earnest efforts to, in fact, do justice. Instead of "flitting about to dinners and receptions," he said, Blackmun "worked long and lonely hours poring over the facts of the most obscure cases and agonizing about the fate of the parties."(9)
How About the Littlest People of All?
One might have thought that Justice Blackmun would have sympathy with unborn children--the smallest people in the world. When the courts were under great pressure to legalize abortion, his deep concern for justice should have led him to say, "Whoa! Let's take a very close look at this. We are asked to strip away all civil rights from an entire class of human beings. And we are dealing with the right to life itself."
To the contrary, in writing the 7-2 majority opinion in Roe v. Wade in 1973, Blackmun ignored scientific evidence about fertilization as the beginning of human life, claiming that: "We need not resolve the difficult question of when life begins." Although admitting that the Constitution offers no explicit definition of "person," he concluded that the Fourteenth Amendment's use of that word "does not include the unborn." At the same time, he claimed that the Fourteenth Amendment does include a right of privacy "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." He did this despite the fact that most states had anti-abortion laws when they ratified the Fourteenth Amendment.(10) While Roe v. Wade theoretically allowed states to ban late-term abortions except to preserve a mother's life or health, Blackmun wrote such a broad definition of health into Roe's companion case, Doe v. Bolton, that it allowed something very close to abortion on demand.(11)
How could this be? How could someone who was in many ways a decent and good person, and a champion of little people, write opinions so devastating to the littlest people of all?
Much research in the Blackmun Papers at the Library of Congress has left me still perplexed by this question. The Justice certainly agonized over the opinions in these cases, but I found no evidence that he agonized over the photographs of unborn children in two of the briefs or over the possibility of fetal pain. Nor did I find any agonizing over the widespread killing already underway in New York, California, the District of Columbia and elsewhere as the result of loosened restrictions on abortion. (I did not find agonizing of this sort by any other justices, either; but the papers of several are not yet open to researchers.)
Perhaps Blackmun did agonize privately over the unborn. When protest against the Roe and Doe decisions began, he referred to "the bitter nights" of the deliberative process. It's also possible that his experience with the death penalty had accustomed him to separating his personal convictions from his official work. Blackmun personally opposed the death penalty; but he upheld it for many years on a federal appeals court, and then on the Supreme Court, because he believed the Constitution allows it. (Finally concluding that it was unconstitutional "as currently administered," he declared: "From this day forward, I no longer shall tinker with the machinery of death." Abortion foes, both those who opposed the death penalty and those who supported it, found bitter irony in that statement.)
It is also worth noting that Blackmun was a junior justice, still insecure in his position on the Court and thus susceptible to pressure from his seniors, when he received the assignment to write the abortion opinions. Responding to a letter in which Justice William O. Douglas had welcomed him to the Supreme Court the year before, Blackmun had confessed that "I question my competency." Many years later, he said it had taken him from three to five years to feel comfortable on the Court.(12)
The Blackmun Papers confirm an irony noted in previous accounts of Roe and Doe: Blackmun's initial position on those cases was ambivalent, and his first draft of the Roe opinion was far less radical than the final one. Other justices--especially Douglas and William J. Brennan, Jr.--pushed him to a more extreme position. But once the Court issued his Roe and Doe opinions, Blackmun did not look back. Blasted by furious right-to-lifers on one side, but welcomed and praised by abortion supporters on the other, he became more firmly committed to legal abortion and expressed his position in more woman-centered terms as the years went by. Women who wrote him to describe their own experience with abortion, and to thank him for the Roe decision, gave him much encouragement. His Methodist pastor and various leaders of the United Methodist Church did the same. And some of his law clerks urged him to take a more radical and partisan stance on the issue.
The 1973 abortion opinions were not written by Blackmun alone; to understand them, one must consider all of the nine justices who decided them. In the pages that follow, I will describe the justices, note many influences upon them, and show how they handled Roe and Doe. Then I will deal with later abortion cases and describe how Blackmun's position became more extreme despite criticism from legal scholars and enormous resistance from right-to-life forces.
The Main Actors
Here is the Burger Court's cast of characters from late 1971-1973:
Chief Justice Warren E. Burger, a Minnesotan and former federal appeals-court judge...appointed by Republican President Richard Nixon, who hoped Burger would rein in a Court that had become quite activist under Chief Justice Earl Warren...Burger could be gracious and charming...could also be domineering and stubborn...resented by other Court members, especially Douglas and Potter Stewart.
Harry A. Blackmun, a Nixon appointee...friends with Burger since early childhood, when both had attended the same Sunday School in St. Paul... Roe and Doe, plus other cases down the line, would strain their friendship.
Lewis F. Powell, Jr., another Nixon appointee...a Virginia gentleman...fairly conservative...had practiced corporate law and served as president of the American Bar Association...legal representation of someone involved in an abortion had given him strong views on the subject.
Potter Stewart, an Ohioan and former federal appeals-court judge, appointed by Republican President Dwight Eisenhower...liked reporters and leaked much Court information to them...often a swing vote on the Court...a key 1971 case had identified him as a supporter of legal abortion.
William J. Brennan, Jr., a Democrat from New Jersey, although appointed by the Republican Eisenhower...architect of much of the Warren Court's activism...genial and a skilled conciliator...leader of the Court's liberal bloc...the only Catholic on the Court at the time.
Thurgood Marshall, a New Yorker appointed by Democratic President Lyndon B. Johnson...the leading civil-rights attorney of his era...an appeals-court judge, then Solicitor General...first African American to serve on the Supreme Court... great storyteller...sometimes cranky...close to Brennan.
William O. ("Wild Bill") Douglas of Washington State, appointed by Democratic President Franklin D. Roosevelt...strong for civil liberties and the environment...often distracted by his world travels, his writing, and his four marriages...an ornery loner on the Court, although Brennan could reach him.
William H. Rehnquist, a Nixon appointee from Arizona...very conservative...good sense of humor...hearty and liked by his colleagues...but, as youngest and one of the newest justices, not yet influential...one of only two dissenters in Roe and Doe.
Byron White of Colorado, appointed by Democratic President John F. Kennedy...something of a loner, but influential...pro-civil rights...advocate of judicial restraint...blunt, and sometimes fierce, in dissent...the other dissenter in the abortion cases.
Of all the justices who decided Roe and Doe, William Rehnquist--now the Chief Justice--is the only one still living.
Law clerks also had major influence on the 1973 and later abortion decisions. Each justice has several clerks, so that the Court has "nine little law firms." The clerks are high-achieving graduates of law schools (often Ivy League or other prestigious ones), most of whom have clerked a year for lower federal court judges. Most remain at the Supreme Court for only one year, although some serve for two. The clerks are very bright, and many are intensely political. Like hospital residents, they work long hours to the point of exhaustion. This may adversely affect their judgment, and it certainly adds to the tension over major cases.
In the early twentieth century, the clerks were mainly research assistants. In recent decades, though, justices have relied heavily on them for opinion-drafting as well--to the point where clerks now write most of the Court's opinions. Some justices supervise them very closely, others less so. Clerks have become diplomats and brokers, working out compromises between or among the justices. Some consciously push opinions to one extreme or another. In Roe v. Wade, several clerks had crucial influence on the legalization of abortion beyond the first trimester
Many observers, and occasionally a justice or two, worry that the clerks have developed too much power. As Douglas once told Burger: "The law clerks are fine. Most of them are sharp and able. But after all, they have never been confirmed by the Senate..."(13)
When the Court considered the abortion cases in 1971-1973, nearly all of the clerks were men, as were all of the justices.
The Sexual Revolution and Population Control
The abortion cases reached the Court just after the social and political tumult of the 1960s, including the sexual revolution and the strong drive for population control. But the sexual revolution was not entirely new and not something that happened only out on the college campuses. Justices Douglas and Marshall had been lacking in sexual restraint--to put it mildly--well before the '60s, and the problems of both were aggravated at times by heavy drinking.(14) Perhaps they realized that legal abortion could be extremely helpful to men--enabling them to escape paternity suits, years of child support, social embarrassment, and the wrath of betrayed wives. But none of this, of course, would be mentioned in the Court's opinions.
Like other Americans, Court members had been subjected to years of propaganda in favor of population control. Wealthy businessman Hugh Moore and his colleagues had distributed huge numbers of a pamphlet called "The Population Bomb" since the 1950s. They had mailed it repeatedly to everyone listed in Who's Who, including Supreme Court justices and other federal judges.
Moore and his friends were mainly concerned about rapid population growth in poor countries, which they feared would make those countries ripe for communism. But they wanted population control in the United States as well. Starting in 1961, they ran full-page ads in the New York Times, the Washington Post, the Wall Street Journal, and other key publications. One of their ads had a huge headline, "Threat to Peace," over a photograph of a little baby. "Population Explosion Nullifies Foreign Aid," proclaimed another. Blaming crime on population growth, a third shouted, "Have You Ever Been Mugged? Well, You May Be!" A fourth claimed that population growth could hold back progress on every front: "Whatever your cause, it's a lost cause unless we control population."(15)
Justice Douglas had written Hugh Moore in 1961 about another Moore anti-population venture, saying that "I have seen some of the literature...all of which I thought was excellent." He suggested cooperation between Moore and an international model villages project with which the Justice was involved.(16) In early drafts of his key opinion in the 1965 Griswold v. Connecticut case, in which the Court struck down an anti-contraception law, Douglas included a reference to marriage as "the main font of the population problem," adding that "education of each spouse in the ramification of that problem...is central to family functioning." This reference disappeared from later drafts.(17) Perhaps a law clerk or another justice convinced Douglas that it wouldn't sound right in an opinion that was supposed to be about liberty.
According to the authors of The Brethren, "As [Justice] Stewart saw it, abortion was becoming one reasonable solution to population control." They may have heard this directly from Stewart, who apparently was their best source among the justices.(18)
In the years just before the Roe and Doe decisions, wealthy population controllers, members of the "power elite," were putting substantial sums into propaganda and legal efforts for abortion. John D. Rockefeller 3rd, his sister Abby, and Cordelia Scaife May (a Mellon heir) were funding the Association for the Study of Abortion. That group pressed for legal abortion in both public and judicial forums, including coordination of friend-of-the-court (amicus) briefs in Roe and Doe. The Rockefeller Foundation was also supporting work on Roe. Investor Warren Buffett and a friend financed a sophisticated set of amicus briefs that helped win a major California case for abortion forces. John Cowles--publisher of the Minneapolis Star and Minneapolis Tribune--was contributing to the National Association for Repeal of Abortion Laws (NARAL) and also to the legal defense of Jane Hodgson, a doctor who had done an abortion to force a test case.(19) The abortion train had left the station--loaded with population controllers, philanthropists, and media cheerleaders. In their whistle-stop tour, they would welcome aboard many others, including many judges.
Judges and Supreme Court justices do not necessarily know who is financing appeals and amicus briefs in cases they hear. If they had known about the wealthy people involved in Roe and Doe, would they have been skeptical about the briefs? Or would they have been impressed to learn that fellow members of the power elite were backing the abortion cause?
Eugenicists and population controllers also had substantial influence on the abortion cases through books and articles cited in Roe v. Wade. Blackmun cited eugenicists Christopher Tietze and Glanville Williams in that case. He also relied heavily on two pro-abortion activists, attorney Cyril Means and writer Lawrence Lader. A zealous population controller who had once worked for Hugh Moore, Lader was the key founder and leader of NARAL; he thought it was "absurd to keep denying the function of abortion in population control..." Means was associated with NARAL as well. As attorney Rebecca Messall has shown, eugenics and population control also influenced some lower court decisions cited in Roe.(20)
The Feminist Influence
Feminist leaders of the nineteenth and early twentieth centuries--such as Susan B. Anthony, Elizabeth Cady Stanton, and Alice Paul--opposed abortion, often with eloquence. Anthony once said that she had helped "bring about a better state of things for mothers generally, so that their unborn little ones could not be willed away from them." Alice Paul asked, "How can one protect and help women by killing them as babies?" But Betty Friedan and other feminist leaders of the later twentieth century were adamant supporters of legal abortion. "Only one voice needs to be heard on the question of whether a woman will or will not bear a child," Friedan proclaimed in 1969, "and that is the voice of the woman herself: her own conscience, her own conscious choice."(21)
The new feminists gave a tremendous boost to population controllers' campaign for legal abortion. To an elitist movement, they brought grass-roots troops, energizing anger, and the conviction that women could not achieve equality unless they had absolute control over their child-bearing capacity. Their anger did not come from ideology alone, but in many cases from experience with the sexual double standard for men and women; sexual harassment and even rape; enormous pressures for sex from male partners (including husbands), some of whom abandoned them when pregnancy resulted; difficult pregnancies; illegal abortions; and severe discrimination in the workplace. These were genuine problems, ones much in need of attention. Unfortunately, though, as the new feminists fired their heavy artillery--from several directions and against nearly the entire culture--unborn children were caught in a devastating crossfire.
Too often Betty Friedan, Gloria Steinem, and their colleagues were believed to be speaking for women in general. They certainly didn't speak for the large numbers of women who opposed abortion, many of whom were already active in the young right-to-life movement. They didn't speak for Nellie Gray, Barbara Willke, Mildred Jefferson, Carolyn Gerster, Judie Brown, Darla St. Martin, Erma Clardy Craven, or Wanda Franz. These women were already active, or soon would be, in the pro-life movement, and most would later head national pro-life groups. Nor did Friedan and her colleagues speak for the women who would join Feminists for Life of America (FFLA), which follows the earlier feminist tradition. FFLA emerged shortly after the Roe v. Wade decision, but has found it difficult to compete with the foundation support and media recognition of the pro-abortion feminists.(22) (The anti-feminist stance of some abortion foes certainly has not helped FFLA.)
The position of Betty Friedan and her troops probably influenced most of the justices, but especially Brennan and Marshall. As time passed, it had much influence on Blackmun as well.
The Brethren authors, one of whom interviewed Justice Blackmun twice in 1978, said that Blackmun "presumed that his three daughters felt that early abortions should be allowed. He claimed to be unsure of his wife Dottie's position." But they added that, when the Justice was working on the abortion cases, Mrs. Blackmun told one of his law clerks, who supported ending restrictions on abortion, "that she was doing everything she could to encourage her husband in that direction." After Roe v. Wade was announced, they said, Mrs. Blackmun told the Justice, "I'm very proud of the decision you made." (They did not indicate sources for these quotations.) Blackmun himself, in 1995, insisted that he hadn't discussed the case with his wife beforehand and that neither his wife nor his daughters had lobbied him about it. His daughter Sally, though, recently said, "Roe was a case that Dad struggled with. It was a case that he asked his daughters' and his wife's opinion about."(23)
Lay people out in the countryside, whose opinions are not requested, resent it when judges do this sort of thing. And the Code of Judicial Conduct, adopted by the American Bar Association while the Supreme Court was considering Roe, declared that a judge "should not allow his family, social, or other relationships to influence his judicial conduct or judgment" and should not "convey or permit others to convey the impression that they are in a special position to influence him."
But on one occasion the Justice, after receiving three different opinions on Roe from his three daughters, said he had a migraine headache and was going to bed.(24)
Sally Blackmun, a lawyer who is active in Planned Parenthood, also described an experience of her own that may have affected her father's views on abortion. In 1966, when she was a 19-year-old college student, she found that she was pregnant. "It was a big disappointment to my parents," she recalled. "I did what so many young women of my era did. I quit college and married my 20-year-old college boyfriend. It was a decision that I might have made differently, had Roe v. Wade been around." Shortly after a low-key wedding, she experienced a miscarriage. Six years later, after she finally completed college, she and her first husband were divorced.(25)
The Mayo Influence
Harry Blackmun was resident counsel of the famous Mayo Clinic, Rochester, Minnesota, from 1950 to 1959. This was an ideal job for him, because he was fascinated by medicine and had seriously considered it as a career. In typical Blackmun fashion, he attended meetings of the Clinical Society and Surgical Society at Mayo, because "I felt the more I could learn about how medicine was practiced there, the better off I would be in advising the physicians." He developed a "feeling of reverence" for Mayo, and many observers believe that led to his heavy emphasis on physician judgment when he wrote the abortion opinions.
One of Blackmun's friends at the Mayo Clinic, Dr. Joseph H. Pratt, was a strong supporter of legal abortion. In 1970 Pratt testified for Dr. Jane Hodgson, an alumna of the Mayo Graduate School who had done an illegal abortion openly in order to test the Minnesota anti-abortion law. Pratt, described by one writer as "Hodgson's most prominent Minnesota medical supporter," would later join other doctors in signing an amicus brief supporting the abortion side in Doe v. Bolton.(26)
In a 1972 memo to fellow justices on that case, Blackmun noted that he had "seen abortion mills in operation and the general misery they have caused despite their being run by otherwise 'competent' technicians."(27) Was he referring to mills he knew about in Rochester while he was at the Mayo Clinic? Or perhaps to ones he knew about when he was a young lawyer in Minneapolis? He did not explain.
Decades after his work at Mayo, asked if he'd had any contact with abortion there, he replied, "Very little, as I recall. The clinic, of course, was not, and did not wish to be, an abortion mill of any kind, and I do not recall the raising of any legal issue about abortion in the decade I was there at all." That is not the same as saying that no abortions were done when he was there. Minnesota law allowed abortion only to save the mother's life or--to cover the case of inducing labor prematurely--the child's life. A 1967 article in Minnesota Medicine discussed "Therapeutic Abortion" in Minnesota from 1955 through 1964--that is, including about five years of Blackmun's tenure at Mayo. It listed a total of 36 abortions by Mayo doctors, most of them in cases where the mothers' diseases ranged from breast cancer and brain tumors to kidney disease and diabetes. One case involved rubella (German measles, which can cause fetal handicaps) and probably was a eugenic abortion. Another abortion was done for "socioeconomic" reasons.(28)
The Methodist Influence
Blackmun was a founder and board member of the Rochester Methodist Hospital, which was closely connected with Mayo. Apparently most of the Mayo abortions were done at the Methodist Hospital.(29)
This reflected the dominant Protestant position at the time, which was basically anti-abortion but permitted it to save a mother's life. By the early 1960s, many Protestants allowed it to preserve maternal health as well. There was more change in mainstream Protestant attitudes toward abortion in the 1960s and early 1970s. Blackmun's own United Methodist Church went through radical change, and population control seemed to be the driving force behind it. In 1970 the church's General Conference passed a resolution on "the population crisis," including a section on abortion that "caused animated floor debate." According to the Methodist magazine Together, the resolution supported "legalized abortion and voluntary sterilization as partial solutions to the population crisis." The conference urged that states drop abortion from their criminal codes and, instead, regulate it as part of medical practice.(30)
This was not a one-time gesture. Activist Rodney Shaw headed a large and well-funded population control effort within the church. Hugh Moore (a Unitarian) thought so highly of Shaw's work that, when tax-law changes led to dissolution of the Hugh Moore Fund late in 1971, Moore transferred $700,000 of its assets to a United Methodist agency for Shaw's use. The sum was to be divided evenly between the church's own population program and the Population Institute (also headed by Shaw), which offered a secular version of the same message. A United Methodist agency contributed to the work of attorney Roy Lucas, who was strategizing to overturn anti-abortion laws and was a key figure in the Roe and Doe cases.(31)
(Pro-life Methodists have tried for years to change their church's position. While they have won a few concessions at the theological level, they have been unable to divert the church's public-policy engine from its abortion track.)(32)
Harry Blackmun was a committed and active United Methodist, one who took theology and the Scriptures seriously. At the time of his nomination to the Supreme Court, he was on the Rochester Methodist Hospital board, the church's Board of Publication, and the board of Hamline University, a Methodist-related institution. Earlier he had chaired the board of his local church for several years, and his pastor described him as a "superb Christian layman, the kind every minister looks for and depends on in his congregation." It seems reasonable to believe that the church position on abortion had a major effect on Blackmun.(33)
Justice Powell's Bias
A few years before he joined the Court, Lewis Powell was contacted by a young and desperate messenger at his Richmond law firm. The young man's pregnant girlfriend had died when she tried--with his help--to abort herself. Powell talked with a local prosecutor, who decided not to prosecute the boyfriend. According to his biographer, the experience "convinced Powell that women would seek abortions whether they were legal or not and that driving the practice underground led to danger and death." The biographer's account does not say whether the woman in this case considered alternatives, nor whether the boyfriend encouraged her to do so.
Justice Powell's late father-in-law had been a prominent obstetrician, and his two brothers-in-law were in the same specialty. His biographer suggests that the Justice believed that "well-educated, high-minded, socially responsible" doctors should not "have their hands tied by restrictive laws." And one of Powell's daughters argued for legal abortions to avoid the danger of illegal ones and also to avoid births of "unwanted children."
According to The Brethren, Powell felt so strongly about the issue that in 1972, at lunch with one of his law clerks, he remarked that abortion laws were "atrocious" and made it clear that: "His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote."(34)
If The Brethren account is correct, this was a classic case of a "result-oriented" judgment, in which a judge first decides what result he or she wants and then rummages around for some legal explanation to justify it. The practice leads to much cynicism among the lay public, and sometimes to great injustice.
Influences on Burger, White and Rehnquist
How about influences on the ambivalent Chief Justice Burger, who ultimately voted with the majority, and on the two dissenters, Justices White and Rehnquist?
Justice Blackmun, in 1995 oral-history interviews, made several cryptic references to family influence on his old friend Burger. "I know of some problems he had personally on this kind of an issue in his family," Blackmun remarked. He suggested this was why Burger did not himself write the Roe v. Wade opinion. Blackmun thus seemed to imply, but did not say explicitly, that one or more Burger family members strongly opposed abortion. Someone who knew Burger well after his retirement from the Court described him as "defensive" and "apologetic" about his vote for Roe v. Wade: "'I never meant for it to be abortion on demand,' he would say. 'And later on I dissented.'"(35)
The White and Rehnquist dissents on Roe and Doe, as well as later abortion cases, were based on their philosophies of judicial restraint and deference to state legislatures. They did not think the Fourteenth Amendment guaranteed a right to abortion. They viewed abortion as a policy question that should be left mainly to the people and their state legislatures.
Some observers suggest that Justice White had personal pro-life convictions. Yet his biographer--a former White Clerk who interviewed many others who had clerked for the Justice--says White "told several law clerks late in his career that if he had been a legislator he would 'have been pro-choice.'" (This is hard to reconcile with the rhetoric of some White dissents.)
We will not have a full picture of Burger, White and Rehnquist for years to come, because their papers are not yet open to researchers. And White, alas, destroyed many of his old files in the 1980s because, he said, "it was time to clean up the place."(36)
The Vuitch Precedent
Milan Vuitch, a Serbian-born immigrant who was a busy abortionist in Washington, D.C., precipitated the first abortion case heard by the Supreme Court. An arrogant man, Vuitch did not take great pains to hide his abortion practice. "I'm the granddaddy of abortion," he once said. "I like to know I'm the best. I guess I've got that competitive spirit you find in people who start poor." Although he was arrested 16 times for illegal abortion, smart lawyers and much help from judges kept him out of jail. He fought a 1968 indictment by challenging the District of Columbia abortion law, which banned abortion except to preserve a woman's life or health. In 1969 a federal district judge found the law unconstitutional on grounds of vagueness. Vuitch was back in business while the government appealed the case to the Supreme Court.
In 1970 a teenager died six days after a Vuitch abortion. A grand jury indicted him for the abortion, but the prosecutor's office "said there was no indication that the death was a direct result of the abortion." (One suspects that the word "direct" should have been underlined.) But this case did not end Vuitch's career, either. Thanks to the courts who kept him in business, two more women later would die after Vuitch abortions, apparently from overdose of anesthesia.(37) And many thousands more of unborn children would die at his hands.
Two other abortion clinics were operating openly in Washington by the time the Supreme Court decided United States v. Vuitch in April, 1971. Hugo Black and John Marshall Harlan were still on the Court at the time, and Black wrote the majority opinion. Although reversing the lower court on the vagueness issue, the justices saved the D.C. law by interpreting "health" to include "psychological as well as physical well-being."(38)
That was a huge loophole. Six weeks later, the Washington Post reported that the capital city "is rapidly emerging as a big-league abortion town, second only to New York in the East" and that abortion "has already become a highly profitable business here." At least five abortion clinics were operating in Washington by September. The medical director of one remarked that its definition of health was consistent with that of the World Health Organization: "a state of complete physical, mental and emotional well-being." (How often in a lifetime does anyone achieve this wonderful state? The doctor was talking about abortion on demand.)
The Washington Post writer who quoted that doctor also gave a glowing description of his clinic: "The modern suite of offices, filled with fresh flowers, softly piped-in music, colorful silk-screen paintings and comfortable furniture...communicates an aura which is immediately warm, supportive and reassuring."(39) This sort of cheerleading from the Post and other media probably influenced the justices. As successful Supreme Court litigators always remember, the justices do read newspapers and watch television.
There were suggestions in the Vuitch case of even worse to come. Justices Douglas and Stewart dissented in part, indicating radical positions. Stewart even said that a competent, licensed physician should be "wholly immune" from prosecution under the D.C. law when he did an abortion he judged to be necessary.(40)
A Planned Parenthood brief in the Roe and Doe cases would include a tough reminder to the justices about Vuitch. By their votes in that case, the brief asserted, "at least seven members of this Court...would permit abortions in cases in which fetuses would be denied constitutional rights if they had any such rights. These seven Justices reached this conclusion despite the fact that the Court had before it in Vuitch amici curiae briefs in which it was argued that the fetus is a person for constitutional purposes."(41)
A "Bobtailed Court" Tackles Roe and Doe
Severe illness forced the retirements of Justices Black and Harlan in September, 1971. What Blackmun called a "bobtailed" Court--it had only seven members instead of the usual nine--heard oral arguments on Roe and Doe in December. Nixon's two new appointees, Powell and Rehnquist, had been confirmed by the Senate but not yet sworn into office, so they did not hear the cases or vote on them the first time around.(42) But they would have their chance the following year, after a decision to have the cases reargued.
When the seven justices gathered for their conference after oral arguments, Douglas led an attack on the Texas law at issue in Roe v. Wade. That law, which a lower federal court had found unconstitutional, banned abortion except to save a mother's life. Although there was some ambivalence, and not everyone voted formally, there seemed to be a 5-2 majority on the "bobtailed" Court to void the Texas law. Blackmun was in that majority.
Views on the Georgia law challenged in Doe v. Bolton were even more complicated. The Georgia law banned abortion generally, but allowed exceptions for the mother's life and health, serious fetal handicap, and rape. A lower federal court had declared unconstitutional the restriction of abortion to hard cases, while upholding a requirement that abortions be done only in hospitals. Brennan, Marshall, and Stewart favored striking down most of the Georgia law. Douglas and Blackmun wanted to send it back to a lower court for fact-finding on whether it discriminated against poor women.
Chief Justice Burger and Justice White thought the Texas and Georgia laws should be upheld, although Burger called the Texas law "archaic and obsolete."(43) Court tradition provides that when the Chief is in the majority, he assigns the writing of the opinion to himself or another justice in the majority. But when the Chief is in the minority, the senior justice in the majority (Douglas in these cases) assigns the case. Burger surprised his colleagues--and greatly annoyed Douglas--by making the assignment although he was in the minority. He gave both cases to Justice Blackmun.
Why Blackmun? His familiarity with medical practice from his Mayo years may have been one reason. But Justice Douglas thought Burger wanted to control the cases by assigning them to his then-ally Blackmun, hoping this would lead to narrow opinions or even to turning the Court around altogether. Alternatively, he suspected that Burger was trying to help Richard Nixon in the 1972 presidential election by delaying Roe and Doe. (Blackmun was a slow writer.) Douglas was also upset because he felt Burger had abused the assignment power in other cases.(44)
Responding to a Douglas protest, Burger suggested that "there were, literally, not enough columns to mark up an accurate reflection of the voting in either the Georgia or the Texas cases. I therefore marked down no votes and said this was a case that would have to stand or fall on the writing..." He also remarked that the cases were "quite probable candidates for reargument."(45)
Harry Blackmun settled down to research on abortion, obtaining many references from a friend who worked in the Mayo Clinic's medical library. He was especially interested in the history of abortion and of the anti-abortion Hippocratic Oath. Blackmun remembered having seen the oath on the walls of Mayo Clinic examining rooms. He had also seen new doctors take it at medical school graduations. He was not far along in his research, though, when he told Burger that he, too, felt the abortion cases should be reargued. Neither justice was satisfied with the quality of the first oral arguments, and Blackmun thought the issues were so important "that the cases merit full bench treatment" (that is, nine justices instead of seven). But there was not then enough support among the other justices for reargument, so Blackmun soldiered on.(46)
Douglas and Brennan Strategize
The restless Douglas had already written a rough draft of an opinion in Doe v. Bolton, claiming a constitutional right to abortion based on a right of privacy. Douglas sent it to Justice Brennan and proposed: "Let me have any of your suggestions, criticisms, ideas, etc. and I will incorporate them, and then we can talk later as to strategy."(47)
The two justices decided to wait for Blackmun's first draft on the Texas case before circulating one of their own on Georgia. Meanwhile, Brennan wrote down his own ideas, "so that I won't forget them," in a long letter to Douglas. Since Brennan had major influence on the abortion decisions, the letter is worth a close look.
Calling for a virtual gutting of the Georgia law, Brennan insisted that the abortion decision "is that of the woman and her alone." A requirement that abortions be done by licensed physicians was the only limit he was willing to accept.(48) Brennan cited many federal cases he felt could be useful on privacy, including Douglas's own Griswold case. And he referred to an opinion he had written quite recently in Eisenstadt v. Baird, declaring unconstitutional a Massachusetts law that banned distribution of contraceptives to single people. Brennan didn't yet have a majority for that opinion, and he suggested that Douglas join him in it. (Douglas did.) The Eisenstadt opinion was, Brennan said, "helpful in addressing the abortion question." He had slipped into the opinion a sentence claiming that the privacy right included freedom to decide "whether to bear or beget a child." Eisenstadt was not about "bearing a child," but about "begetting." But Brennan knew his phrase could be cited in the abortion cases. As attorney Edward Lazarus wrote years later, "Brennan knew well the tactic of 'burying bones'--secreting language in one opinion to be dug up and put to use in another down the road."(49)
A book on Brennan is subtitled Freedom First, and that apparently was his major motivation. In the letter to Douglas about the Georgia law, he identified several groups of "fundamental freedoms" including "freedom from bodily restraint or inspection...freedom of choice in the basic decisions of life...autonomous control over the development and expression of one's intellect and personality." He declared that the "decision whether to abort a pregnancy obviously fits directly within each of the categories of fundamental freedoms I've identified and, therefore, should be held to involve a basic individual right."(50)
Brennan mentioned the issue of "the material interest in the life of the fetus and the moral interest in sanctifying life in general," acknowledging that this "would perhaps be the most difficult part of the opinion." But then he showed how to deal with it by promoting doubt about the beginning of human life. He cited an unabashedly pro-abortion article that former Justice Tom C. Clark had written for a law review. Overlooking a great deal of evidence from embryology (and also contradicting himself), Clark had declared: "The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity--the known rather than the unknown.... The phenomenon of life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide..." Brennan quoted part of this and added, "The inconsistent position taken by Georgia in allowing destruction of the fetus in some, but not all cases might also be mentioned."(51)
Brennan thought his oath of office required him to separate his Catholic religious beliefs from his judicial work.(52) But did it ever occur to him, one wonders, that he should see what modern embryology says about the human embryo? Or should consider the wrong of depriving a human being of, say, 75 years of life itself? I have found no indication that Brennan cared about these questions. His letter to Douglas had an abstract, cold-blooded aspect; his position was calmly stated, but ruthless.
The Brennan letter had major influence on later Douglas drafts, which eventually became the Douglas concurring opinion in Doe and Roe. At some point, Douglas sent one of his drafts to Justice Blackmun, who was still plodding along in his research. In May, Blackmun told Douglas that the draft "was very helpful" and that "I suspect we are really not very far apart."(53)
Several days earlier, on May 18, Blackmun had finally circulated a first draft of the Roe v. Wade opinion. He wanted to avoid some key issues--and possibly achieve a unanimous opinion--by simply finding the Texas law "unconstitutionally vague." But he told his colleagues that "I am still flexible as to results, and I shall do my best to arrive at something which would command a court." Brennan was unhappy with the Blackmun approach. He responded right away, saying that he wanted a decision on "the core constitutional question." Douglas chimed in the next day to the same effect.(54)
On May 25 Blackmun circulated his first Doe v. Bolton draft. It was conservative on one issue, upholding the requirement that abortions be done only in hospitals. But it supported the lower court's basic position and even extended it to strike down several more parts of the Georgia law, including a residency requirement and required approval by a hospital abortion committee. Brennan and Douglas were pleased with how far Blackmun had gone on Doe, although they hoped to push him even farther. Brennan wanted to strike down the hospital requirement so that abortion clinics could operate in Georgia. He also wanted to move toward Justice Stewart's Vuitch position of making doctors immune from prosecution.(55)
The Flare of Battle, then a Truce
But Brennan and Douglas didn't want to press Blackmun too hard because the latter still thought it might be wise to have the Georgia case reargued. After Byron White circulated a Roe dissent, stressing that the Texas law was actually less vague than the law the Court had upheld in Vuitch, Blackmun thought both abortion cases should be reargued. On May 31 he told his fellow justices that "on an issue so sensitive and so emotional as this one, the country deserves the conclusion of a nine-man, not a seven-man court, whatever the ultimate decision may be." He did not suggest any change in his basic position, but said he was "not yet certain about all the details."(56)
Douglas, Brennan and Marshall quickly responded with votes against rearguing the cases. Douglas said he felt "quite strongly that they should not be reargued....The important thing is to get them down." He assured Blackmun that "you have a firm 5 and the firm 5 will be behind you in these two opinions until they come down." Chief Justice Burger, though, sided with Blackmun on reargument. Burger remarked that he'd "had a great many problems with these cases from the outset. They are not as simple for me as they appear to be for others...."(57)
Douglas worried that Burger was maneuvering to gain a majority for an anti-abortion position by bringing Rehnquist and Powell into the picture and by leaning on Blackmun to uphold the Texas and Georgia laws. Had Douglas understood Powell's personal views, he might not have worried so much, but Powell voted for reargument and remarked that "I certainly do not know how I would vote if the cases are reargued." Rehnquist and White also voted for reargument, so there was a majority to delay the cases until the fall.(58)
Stewart and Douglas were furious. According to Brennan, Stewart "expressed his outrage at the high handed way things are going...He also told me he will not vote to overrule Wade, Miranda etc. & resents CJ's [Chief Justice's] confidence that he has Powell & Rehnquist in his pocket." Douglas threatened to file a dissent from reargument that attacked the Chief. Renewing his complaint about Burger's assigning the case from the minority, Douglas declared in a draft: "Russia once gave its Chief Justice two votes; but that was too strong even for the Russians."(59)
Brennan persuaded Douglas to tone down his draft, but "Wild Bill" made his point by circulating a later draft to all the justices. Brennan and others, worried about a public shouting match, eventually convinced him not to issue a statement at all. Justice Blackmun apparently was the key persuader, according to a legal writer who interviewed him in 1992. "Douglas refused to withdraw his dissent," James F. Simon reported, "until Blackmun personally assured him that his position of declaring the abortion statutes unconstitutional was firm, and that he had no intention of reversing that position after reargument." On June 26, when the Court announced that the abortion cases would be reargued, the victorious Douglas was content with a simple note that he dissented.(60)
If there was any chance of averting strongly pro-abortion decisions in Roe and Doe, Blackmun's assurance to Douglas ended it. Douglas and his allies then knew they had their majority of five votes sealed and delivered. From that time on, it was just a question of how radical the decisions would be.
There were more fireworks on the Court, and it seems appropriate that they started on the Fourth of July. Someone
Late in July, Burger sent Douglas a long letter defending his own actions and insisting that "I have never undertaken to assign from a minority position." He declared that "there was no majority for any firm position" on the abortion cases when he assigned them. Douglas, responding, did not back down on his version but stressed that "we are a group with fiercely opposed ideas but we have always been a friendly, harmonious group. That's the only way I want it." He invited the Chief and his wife for a visit to Goose Prairie.(61)
Blackmun and His Aide at Work in the Summer
Harry Blackmun, meanwhile, took time from his summer vacation for research at the Mayo Clinic library. He found a way to deal with the Hippocratic Oath's abortion ban when he located a study concluding that the oath represented a minority opinion among the ancient Greeks. It became popular and accepted as an absolute standard, he would suggest in Roe v. Wade, with the rise of Christianity, whose "teachings were in agreement with the Pythagorean ethic" represented by the oath. He thought this "a satisfactory and acceptable explanation" of the oath's "apparent rigidity."(62)
But he didn't explain why the fact that an ethical stance was a minority position in an ancient culture should argue against that position. Some ancient cultures favored cannibalism, human sacrifice, or gruesome and excruciating forms of torture. Undoubtedly some people in those cultures-- especially those about to be thrown into the pot or sacrificed to the gods-- held minority positions on such practices. Most of us believe it was a sign of progress when ancient cultures changed so that those positions were accepted by all.
Blackmun was in touch with one of his clerks, George Frampton, who was revising the abortion opinions back at the Court. There were ominous signs for the unborn in a long August note from Frampton to his boss. In dealing with the idea of a right to fetal life, the clerk recalled that in a previous memo he had "suggested that the best way to handle this constitutionally would be to recognize that there is an 'interest' or 'concern' involving future life or potential life." But a "fundamental" constitutional right--such as the right to abortion that Blackmun and Frampton were busy inventing--trumps an interest or concern unless the latter is "compelling." Frampton, however, had chosen viability--the time when the unborn child can live outside the womb--as the point where the state interest in fetal life could become compelling. And he emphasized that "I tried to avoid saying or intimating that a state must assert its interest to protect fetal life at a certain point; only that it can assert such an interest."(63)
Extending the Hunting Season
The nine justices heard oral arguments in Roe and Doe in October. Attorneys for Texas and Georgia were weak on two crucial points: the beginning of human life, which they should have stated clearly--based on scientific evidence--to be at conception; and the strong support for the right to life of the unborn that prompted passage of anti-abortion laws in the mid- and late 1800s. (Earlier, the common law had protected unborn children after "quickening"; some states had provided statutory protection as well.) Attorneys on the other side persuaded most of the justices that the laws were passed mainly to protect women's health from what was then very dangerous surgery.
Blackmun, however, had reason to know better; in Roe he would quote an 1859 statement of the American Medical Association--then a leader of the effort to have stricter anti-abortion laws passed and enforced--against the destruction of unborn "human life." And he would quote an 1859 AMA committee that said the failure of existing law to offer more protection was based "upon mistaken and exploded medical dogmas." With that knowledge, he should have asked his clerks to research thoroughly the legislative history of state anti-abortion laws. Instead, he cited the partisan Cyril Means to support the false position that those laws were adopted only to protect women's health.(64)
When the justices met to discuss the cases, the Chief seemed inclined to void at least the Texas law. Powell sided with Blackmun's majority on striking down the Georgia and Texas laws. Rehnquist sided with White on upholding the Georgia law, but both seemed undecided on Texas. Stewart wanted the Court to elaborate on the idea that the unborn are not persons under the Fourteenth Amendment. (Blackmun would do this, to his later regret; he felt it wasn't needed and that it was a red flag to the opposition.) Blackmun now favored striking the hospitalization requirement in the Georgia law, and he gave up his "vagueness" approach to the Texas case.(65)
By November it was clear that Roe v. Wade would be the lead case, the one that would give state legislatures their marching orders on how to change their laws. But Blackmun's November Roe draft would have allowed states to ban abortions after the first trimester (roughly the first twelve weeks of pregnancy) when they were not "therapeutic." This led to a strong effort, largely clerk-driven, to protect all second-trimester abortions--and many in the third trimester--by moving the cut-off point to viability. Larry Hammond, a clerk to Justice Powell, urged his boss to push for viability because poor, scared, unsophisticated girls--"hoping against hope" that they weren't pregnant--might not decide on abortion until after the first trimester. Powell wrote Blackmun to suggest viability, and Blackmun asked all the justices for their opinions.
Brennan thought Marshall would be the best point man on this issue. (Blackmun liked and respected Marshall and thought Marshall knew more about some real-world conditions than other justices did.) After much consultation with Brennan clerk William Maledon, Marshall clerk Mark Tushnet drafted a letter for his boss to send Blackmun. In it, Marshall pressed for "drawing the line at viability," since otherwise states might ban abortion after the first trimester.(66)
Douglas, surprisingly, was more conservative than the others. "I favor the first trimester, rather than viability," he told Blackmun, but did not explain why. Stewart worried about "being quite so inflexibly 'legislative'" and suggested that the states should have "more latitude to make policy judgments..." Douglas and Stewart lost on this point, but stayed with the majority. Blackmun revised Roe again, allowing limits on abortion in the second trimester for protection of maternal health only. And only after viability--which he said could range from 24 to 28 weeks (six to seven months)--could a state ban abortion, "except when it is necessary to preserve the life or health of the mother." With this, and with their broad definition of "health" in Doe, Blackmun and his colleagues set up a classic Catch-22 trap for unborn children and those who tried to defend them.(67)
While some clerks were deeply involved in the negotiations for extending the hunting season of abortionists, others were dismayed by the whole process. The Brethren reported that they "were surprised to see the Justices, particularly Blackmun, so openly brokering their decision like a group of legislators."(68) Or, one might say, like people haggling over bric-a-brac in a Mideastern bazaar. No one reminded them that they were bargaining over human lives.
White and Rehnquist Dissent;
Justices White and Rehnquist, who had been rather quiet during the majority's negotiations, wrote sharp dissents as announcement time approached. "I find nothing in the language or history of the Constitution to support the Court's judgment," wrote White. He called the decisions "an exercise of raw judicial power" and declared that the abortion issue, "for the most part, should be left with the people..."(69)
Justice Rehnquist challenged the Court's use of privacy, saying that abortion privacy is not even "a distant relative of the freedom from searches and seizures protected by the Fourth Amendment..." In a powerful footnote, he listed the many states and territories that had laws restricting abortion in 1868, the year the Fourteenth Amendment was adopted. There were only 37 states in the Union then; according to the Rehnquist list, 30 of them had anti-abortion laws. He concluded that the drafters of the Fourteenth Amendment did not intend to remove the states' power to pass such laws.(70)
The Roe and Doe decisions were announced on January 22, 1973. Abortion supporters were delighted, while opponents were stunned and angry. Reactions might have been louder, though, if all media had accurately portrayed the decisions. Confronted with Blackmun's long opinion in Roe and faced with pressing deadlines, reporters emphasized the trimester system and said states could regulate abortion after the first trimester. Many either didn't see or didn't understand the Doe definition of health. It covered "all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient." When applied to the Roe provision that a state may ban abortion after viability "except when it is necessary to preserve the life or health of the mother," it makes that provision virtually meaningless.(71)
Noticing Mrs. Blackmun in the courtroom the day the abortion decisions were announced, Justice Powell had sent her a handwritten note: "Dottie - Harry has written an historic opinion, which I was proud to join....I am glad you were here." But legal scholars did not share Powell's pride. Some who agreed with Roe's policy conclusions were bewildered by its interpretation of the Constitution. Yale law professor John Hart Ely, one of the first critics out of the gate, declared that Roe "is not constitutional law and gives almost no sense of an obligation to try to be." Other scholars criticized its history of abortion law. Some attacked its admission of incompetence on the question of when human life begins. But given that admission, they suggested, it was unfair of the Court to forbid states' adoption of "one theory of life" and their use of that theory to ban abortion. One of the sharpest criticisms came, not from a legal scholar, but from Dr. Mildred Jefferson, a Boston medical professor. She said the Court had elevated "a woman and her doctor to the positions of super citizens, able to enter a private contract to end a life."
I would add that Roe is strikingly reactionary, taking us back to ancient and medieval science. In saying that it need not resolve the question of when life begins, the Court seemed to suggest that science couldn't answer the question. That simply was not true. Doctors in the 1800s lobbied for anti-abortion laws largely because scientific knowledge had advanced so much. They knew that the old common-law distinction of "quickening" made no scientific sense.
Roe is also reactionary in denying rights to a whole class of human beings, as was done so often in ancient times and in our own country in the slavery and segregation eras. It was odd that Blackmun, the grandson of Union soldiers, would repeat this historic error. It was strange that the Court's leading liberals
Lots of Letters
There was plenty of blame to go around for the abortion decisions. But the unlucky Blackmun, as author of the opinions, quickly became the chief target of people dismayed by them. When he spoke in Cedar Rapids, Iowa, two days after the decisions were announced, about 50 pro-lifers greeted him with picket signs such as "Adoption not Abortion" and "Legality Doesn't Make Morality." This was a fairly mild protest; after Blackmun went into the building to address the Chamber of Commerce, the pickets said some prayers and left. (By 1974, though, Blackmun would be meeting tougher crowds. He would tell reporters that "it's a new experience for me to go places...and be picketed and called Pontius Pilate, Herod and the Butcher of Dachau and accused of being personally responsible for 500,000 deaths in the past year.")(73)
Meanwhile, back in Washington, letters of protest and outrage were piling up for him to read. They were the first of an outpouring that would continue as long as he was on the Court. Over the years, Blackmun often referred to his "hate mail." There was, his papers show, a good deal of that. A Californian thought it too bad that "your mother didn't practice abortion" and added, "Or are you the product of a failed abortion? Why don't you kick off & make room for a unborn citizen who would contribute something to the U.S.?" A Kansan declared that "if I could play God as you have I would render all nine of you incapacitated in some way to get you off the Supreme Court...may God forgive me but I hope all of your future descendants are shown to you in a bottle of formaldehyde." There were many references to Hitler: "Genghis Khan and Adolf Hitler would have loved men of your amoral fiber!"..."You five pro-baby murderers make Hitler look like a Sunday School teacher."(74) There were also many writers who, while angry about the issue, were not personally abusive. But many of them hadn't learned how to express deep convictions without being shrill.
Lots of letters threatened Blackmun with hellfire if he failed to repent; others assured him of prayers. Some writers were very polite and respectful; some were pleading. "Please, Judge Blackmun," wrote a Texan, "because you're in a position of high authority, please speak up and defend these little ones who cannot defend themselves." A couple from Wisconsin wrote a thoughtful critique of a later Blackmun abortion opinion and added, "You have done too good of a job otherwise, to be remembered for this opinion, which cannot and will not stand the test of time."(75)
Blackmun actually read most of his abortion mail, although he rarely answered letters from abortion opponents, even the polite and pleading ones. I suspect the latter might have made a deeper impression on him if more of them had related personal stories of hard cases that turned out well or experience with abortion that was devastating. There was some of this, but most of the letters stressed abstract principles.
On the other side, many women told the Justice horrific stories of illegal abortions they had experienced in the old days and thanked him for the Roe decision. Some told him about legal abortions they were able to have because of Roe. A Connecticut teenager declared: "Recently I had an abortion, and frankly, it saved the rest of my life from ruin....I just want you to know that I believe I made the right decision...and I did not have a tragic experience because I was forced to go to some quack." Others did not deal with personal experience, but expressed profound gratitude. "In this house," one woman wrote, "your name is blessed." The beleaguered Blackmun usually answered supportive letters with a brief but heartfelt note of thanks. To a woman who wasn't sure it was proper for her to write a justice, he said there "is no reason why you should not express your opinion, for the cases in question were decided some time ago." He added wryly, "Certainly everybody else seems to be writing."(76)
Mail from the general public that supported Roe was tiny in volume compared to the outpouring of letters against it. But Blackmun also heard from former clerks, judicial colleagues, and old friends in support of his abortion opinions. People he trusted, admired, and loved kept reassuring him that he was right.
So did members and leaders of his United Methodist Church. Blackmun received especially strong support from his Methodist pastor, Rev. William A. Holmes, from 1976 onward. Holmes, senior pastor of the Metropolitan Memorial United Methodist Church in northwest Washington, D.C., was delighted when the Justice attended his church in 1975. He asked Blackmun to participate in the liturgy for a Judiciary Sunday early in 1976. In thanking him for his assistance in that service, Holmes also expressed "my gratitude for the courage, vision and wisdom represented in your rendering of the Court's decision on the abortion issue."
The Blackmuns began attending Metropolitan Memorial on a regular basis. The Justice became a lay reader of Scriptures during services, usually at Easter and once in the fall. He mingled with other members of the congregation during social events and spoke to several church groups. He became good friends with Rev. Holmes; this resulted in an extremely interesting Dear Harry/Dear Bill correspondence.(77)
In a 1985 handwritten letter, Holmes told Blackmun--apparently for the first time--that when working in Texas before 1973, he had been part of national group of clergy who counseled "women with problem pregnancies." He had referred women to hospitals in New Mexico and California for legal abortions. Holmes said it was tragic, though, that many women couldn't afford to travel outside Texas, so they had "either illegal abortions or unwanted children." He felt this was "not only against their best interests, but also against what I believe to have been the best interests of the fetuses they carried." (Rev. Holmes was saying that the children would have been better off dead. One wishes he had pondered the comment of the British writer who remarked: "No human being has the right to make any such judgment about another human being. Even if one had the right, there would be no guarantee of making a correct decision.")
Holmes, who was writing just before the twelfth anniversary of Roe v. Wade, added, "Although I deeply regret the verbal attacks and personal threats which the decision still brings to you, I literally thank God for the conscience and courage which produced that decision." Blackmun responded that it "touched me deeply that you wrote as you did....Your friendship and support mean much to Dottie and to me. These are rather strainful times and, in that respect, they seem to be getting worse rather than better."(78)
Church leaders also supported and encouraged Blackmun's judicial work on abortion. A representative of the Methodist bishop and district superintendents of Minnesota wrote him in 1983 to "convey our appreciation for your courageous stand on this sensitive issue." And in 1986 a seminary vice president told him that Roe "represented a significant forward step in the emancipation of women..."(79)
Deeper into Abortion
As the years passed, Blackmun became ever more committed to abortion. Viewing it as a benefit for women, he seemed unconcerned about its brutal reality for unborn children. In 1976 he wrote an opinion striking down a Missouri ban on saline abortions--a cruel method used in the second-trimester, and one the state legislature had found harmful to maternal health. He was hostile to requirements that doctors try to save the life of a viable unborn child by using a method that would give the child a chance to survive. He was hostile to mandates for parental consent, and even parental notification, for a minor's abortion.(80)
In one case involving saline abortion, Blackmun went outside the evidential record to make a point. In a sharp dissent, Justice White insisted that the case "must be decided on its own record." He protested the idea that normal rules "suddenly become irrelevant solely because a case touches on the subject of abortion." White said the justices should defer to the state legislature, unless the Court claimed to be "not only the country's continuous constitutional convention but also its ex officio medical board..."(81)
Notably absent from Blackmun's majority opinion was any description of what the unborn child looks like in the second trimester and what saline abortion does to the child. It's doubtful that he was ignorant of those facts. Two of the 1971 briefs in Roe v. Wade had included photos of fetal development from 40 days to 18 weeks of age. One photo showed an unborn child sucking his/her thumb at 18 weeks. Soon after Roe, Justice Douglas had passed on to Blackmun "a handbook on abortion that an irate New Yorker sent me." The book contained photos of aborted children, including one killed by the saline method at 19 weeks.(82)
By the late 1970s, Blackmun's majority on abortion cases was no longer secure. A severe stroke had forced Douglas off the Court; his replacement, John Paul Stevens, supported Roe but had mixed positions on parental consent and public funding of abortion. Burger, Stewart and Powell--all members of the Roe majority--did not believe the Constitution required public funding. So from 1977 through 1980, Blackmun, Brennan and Marshall lost a series of cases on Medicaid funding of abortion. Brennan contended that the law must treat both normal childbirth and abortion as "necessary medical treatment for the condition of pregnancy," so that if a state funded childbirth for poor women, it must fund abortion for them as well. Marshall attacked the funding denial as unjust to minority and poor women. He cited the fact that non-whites were having abortions "at nearly twice the rate of whites" not as an example of how economic pressures (the stick of poverty, the carrot of abortion funding) can be used for genocide but, rather, as proof that denying abortion funding to poor women would be especially devastating to them.
Blackmun echoed this theme. In a passage that must have appealed both to cranky taxpayers and to crafty eugenicists, he said the cost of a
Blackmun essentially was arguing for abortion as a solution for poverty. He and his allies apparently assumed that all poor women who had abortions really wanted to have them. The three justices also ignored the responsibility of the male partners to help support children they had fathered. As far as they were concerned, the women might as well have been married to the government.
Far from considering it unjust to use taxpayers' money to kill the unborn, Blackmun seemed to resent those taxpayers who protested. Commenting on the suggestion that states could still fund abortion if they wished, he asked: "Why should any politician incur the demonstrated wrath and noise of the abortion opponents when mere silence and nonactivity accomplish the results the opponents want?" In 1980, in a private letter to Justice Marshall, Blackmun expressed the frustration of seeing his old majority slip away again in a parental notification case. "I fear that the forces of emotion and professed morality are winning some battles," he remarked. He expressed a hope that "the 'war,' despite these adverse 'battles,' will not be lost" and added, "You and Bill Brennan, of course, have been most supportive."(83)
In the 1983 City of Akron case, Blackmun and Brennan did damage control for the abortion industry. Justice Powell was writing for a majority of six who struck down an Akron, Ohio, law that regulated abortion. Before joining his opinion, Blackmun and Brennan asked Powell to make changes in his first draft, including deletion of a footnote in which he had criticized assembly-line abortions. While it might be true, Brennan told Powell, "that some abortion clinics do not meet the standards of medical ethics, I would like to avoid making a general statement to that effect..." He thought that would give "aid and comfort to those who would justify burdensome regulation...without investigating whether such violations are in fact occurring."
Blackmun dismissed the issue by saying, "We all know that there are rascals in the medical profession as there are in the legal profession." Powell substantially revised the footnote, deleting a long description of assembly-line counseling he had picked up from earlier cases. He did this although, as he told Brennan, "I had thought from the discussion at Conference that we were of one mind, namely, that abortion mills do exist, and are operated to the great profit of unethical physicians who care little about their patients..."(84)
So the justices knew that legal abortion hadn't eliminated abortion mills; but Blackmun and Brennan didn't want them to say so out loud. Sometimes, though, news stories said it for them. Two months after City of Akron was announced, the Washington Post reported that Milan Vuitch--the local abortionist protected so long by the courts--had made a settlement with the family of a woman who had died after a 1980 abortion at his clinic. Conditions at the Vuitch clinic were so appalling that the following year a coalition of abortion supporters worked to shut it down. A city inspection had found improper labeling of drugs, use of drugs beyond their expiration date, and several problems with anesthesia at the clinic. A university hospital doctor had filed a complaint against Vuitch after handling two or three of his botched abortions. There had been malpractice awards against Vuitch for improper repair of a torn uterus and failure to give even a local anesthetic during one abortion. The city finally closed his clinic, and Vuitch retired.(85)
A Bullet through the Window
In the fall of 1984, someone sent Justice Blackmun a brief note, "H. Blackmun: Dog, you are hereby found 'guilty' of butchery, and your sentence is death, (time and method at our discretion). If you reverse your butchery vote, the execution will be cancelled." It was signed, "Army of God." That name had been used before on messages claiming responsibility for the fire bombing of an abortion clinic in nearby Maryland, other attacks on clinics, and the kidnapping of an abortionist and his wife in Illinois. So the FBI and other federal agencies took the threat seriously. Supreme Court police protected Blackmun between home and office and at public events.
On February 27, 1985, Blackmun's office received a threat from a man in Buffalo, N.Y., "Sir: I do not like the way you are doing your job. One day i am going to see you and shoot your brains out. I am going to shoot you dead and i will be coming to your funeral."(86) The next night, while the Blackmuns were at home in their Northern Virginia apartment, a bullet pierced their livingroom window--not far from where Mrs. Blackmun was sitting--and lodged in a chair. According to a Washington Post report, the Justice "had just left the room when the shot was fired," and the shot "showered glass" on his wife. The FBI had kept a lid on the story for several days; so the Post, a morning paper, didn't run its account until March 5. That same morning, a man called Blackmun's office and told his secretary: "I hope the bullet gets him next time....That murderer deserves to die and he deserves to go to hell."(87)
The FBI concluded that the bullet had come from a handgun, probably from across the Potomac River in Washington. Judging from the bullet's trajectory, the FBI judged it to have been a random shot, possibly fired by accident, rather than one aimed at the Justice. But Blackmun's youngest daughter, Susan, later wrote that "my sisters and I lived in terror he'd be killed by an assassin." The presence of U.S. Marshals at family events was a constant reminder of danger.(88)
There were other threats over the years, sometimes from people with serious mental problems. An Atlanta man sent one in April, 1994, soon after Blackmun announced his retirement from the Court. The writer attacked Roe v. Wade and said Court members "should be lined up and shot by a firing squad." When the FBI located the man for an interview, "He seemed barely coherent...he was trembling and barely able to stand." He hadn't worked for 17 years, had been diagnosed with paranoid schizophrenia in 1988, and was living on Social Security disability. "He said that he means no harm to any Supreme Court justice and does not intend to write any additional letters of this nature."(89)
Thornburgh and Webster
If those who sent threats to Blackmun thought they could change his abortion position or frighten him into retirement, they were very much mistaken. In the 1986 Thornburgh case, he wrote the majority opinion in a 5-4 decision that virtually demolished a Pennsylvania law restricting abortion. Although the Reagan Administration's Solicitor General had asked the Court to overturn Roe, the majority reaffirmed it instead.
Pennsylvania had required the provision of specific information to a woman considering abortion--including information on medical risks of both abortion and childbirth, prenatal/postnatal care availability, and the father's responsibility for child support. Blackmun wrote that states could not "intimidate women into continuing pregnancies." He claimed that a required description of fetal development was not "always relevant to the woman's decision" and might "serve only to confuse and punish her and to heighten her anxiety..." In a footnote, he remarked that federal courts had stricken such requirements consistently "because of their inflammatory impact." (So much for informed consent, respect for women as adults, and the notion of facing clearly the results of one's decisions.) Blackmun again showed his hostility to requiring efforts to save the child in a post-viability abortion. "All the factors are here for chilling the performance of a late abortion...," he complained.(90)
Justice White called the majority's positions "procedurally and substantially indefensible...highly inappropriate...linguistic nit-picking... baffling." Sandra Day O'Connor, who had replaced Potter Stewart on the Court, also dissented, as did Rehnquist and Burger. In his dissent, the Chief Justice declared that if Thornburgh and a similar case "really mean what they seem to say, I agree we should reexamine Roe."(91) Burger announced his retirement from the Court several days later. But President Reagan moved Rehnquist up to Chief Justice and named Antonin Scalia to the Court, so the net result was a strengthening of the four-vote minority.
In 1987, after Justice Powell announced his retirement, Reagan nominated the conservative Judge Robert Bork to replace Powell. The Senate rejected Bork after a fierce confirmation battle in which abortion was a key issue. But it accepted another conservative, Judge Anthony Kennedy, for the Powell seat. The anti-Roe forces hoped they at last had the five votes they needed to overturn the decision they had been fighting for fourteen years.
So there was enormous pressure on the Court during consideration of the 1989 Webster v. Reproductive Health Services case. This involved a Missouri law with tough restrictions on abortion funding and on abortion counseling in public facilities or by public employees. Both pro- and anti-Roe activists sent a great volume of mail to the Court about the case. Abortion supporters also put millions of dollars into media advertising and held a huge march on Washington. Among the many letters Blackmun received was one from a woman in his congregation: "...after I sang in the choir at the 11:00 o'clock service on Sunday, I went down to the Pro-Choice March at 2:30 and stayed several hours. (I was astounded to see so many people!)...."(92)
When the Court upheld the Missouri law's key provisions by 5-4, Blackmun was bitter even though it had not overruled Roe. "The plurality opinion," he said, "is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly..." If that happened, he predicted, hundreds of thousands of women would have back-alley abortions or even abort themselves--leading to trauma or death for many, "all in the name of enforced morality or religious dictates or lack of compassion..." His dissent had a familiar ring, sounding remarkably like the fundraising letters of abortion groups. It ended with a passage that would be much-quoted: "For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows."(93)
Justice Scalia, though, was upset that the ambivalent Justice O'Connor had prevented a majority decision to overturn Roe. "It thus appears," he wrote, "that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be."(94)
On the Sunday after Webster was announced, Blackmun's pastor preached a sermon criticizing Webster and praising Roe v. Wade. Rev. Holmes, stressing an "unwanted children" theme, called Roe "one of the most conscientious and civilized provisions a society could make for parenthood and childhood--Biblically defined." Blackmun wrote Holmes that "you did a splendid piece of work Sunday morning....It touched me deeply, and I thank you for it."(95)
The Politics of Casey
Pennsylvania, like Missouri, kept trying to limit and discourage abortion despite the huge barriers of Roe and its successor cases. At issue in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey was a new Pennsylvania law that included a detailed informed consent requirement, a 24-hour waiting period, parental notification, and spousal notification. Abortion supporters, having lost in the appeals court, decided on a risky strategy. Believing that Roe's days were numbered in any case, they appealed to the Supreme Court right away and bluntly asked the justices to decide whether Roe was still in effect. As one legal writer said later, "If they were going to lose, they wanted to lose big--big enough to tilt national politics in their favor." Focused on the 1992 elections, they thought an overturn of Roe would galvanize their activists and voters to toss President George H. W. Bush and other abortion foes out of office. Women, a Blackmun clerk told her boss, would have "the opportunity to vote their outrage."(96)
By this time, President Bush had appointed David Souter to replace Brennan on the Court, and had named Clarence Thomas to replace Marshall. No one knew how Souter would vote on Roe, but observers were right in believing that Thomas would vote against it. Despite what O'Connor and Souter might do, there seemed to be a majority on the side of the two veteran Roe opponents, Chief Justice Rehnquist and Justice White. Yet there was always the chance that--confronted with the stark choice of overturning Roe--a few justices would draw back from what might seem to be a very steep cliff. This is what actually happened, although those who stepped back damaged Roe in the process of saving it.
When the justices met in April, 1992, to vote on the case, Rehnquist had the five votes he needed to uphold the Pennsylvania law (Kennedy, Rehnquist, Scalia, Thomas, and White). The Chief suggested this could be done without overruling Roe and assigned the Casey opinion to himself. Afterwards, though, Souter approached O'Connor about a possible compromise to resolve the abortion issue. She was receptive; she didn't want to scuttle Roe, but she thought the states should have more discretion than it allowed. The two approached Justice Kennedy, even though he had voted with Rehnquist in conference, and Kennedy joined their plan. The three justices, in secrecy at first, wrote an opinion that reaffirmed a constitutional right to abortion; stressed the importance of the stare decisis ("to stand by what has been decided") doctrine; but substituted Justice O'Connor's "undue burden" standard for Roe's "strict scrutiny" test of state abortion laws. This meant that states could discourage abortion more than the immediate post-Roe decisions allowed, but could not ban it outright in any trimester.
The "troika" judged correctly that Blackmun and Stevens, the only firm defenders of Roe still on the Court, would join them in the end. Late in May, Kennedy sent a handwritten note to Blackmun: "I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v Casey, and at least part of what I say should come as welcome news." Blackmun's notes on their meeting included a reference to "RC agony" and "traitor." This probably meant that Kennedy was struggling with his strong Catholic beliefs against abortion--and knew he would be perceived as a traitor by many fellow Catholics and conservatives if he voted to reaffirm Roe.(97)
Blackmun and Stevens, who had worried for years that Roe would go down in flames, were heartened that the troika had stepped in to rescue it. They would have preferred a full-scale affirmation of Roe, but realized they were lucky to have it saved at all. Stephanie Dangel, the clerk who drafted Blackmun's concurring opinion, suggested that where he differed with the troika on modifying Roe, his tone should not "be harsh--it must be the more consoling tone of an older, wiser uncle..." She proposed ending his opinion with a pointed reminder that "while there may be something to cheer in the troika's opinion, there is much more to fear from the right. And the difference between the two positions is a single vote--a single vote that is up for grabs in the coming election." She drafted a paragraph making this point in slightly more subtle language; it noted that Blackmun was 83 and said the confirmation of his successor might focus on "the issue before us today."
Justice Stevens, knowing the paragraph would be seen as a political rallying cry, tried to persuade Blackmun to delete it; but Blackmun stayed with his clerks. "I hope you don't feel that we were pressuring you too much" on the passage, Dangel told him at one point. After the Casey decision was announced, she said it was unfortunate that some people had tried to transform the passage "into a 'call to arms'...but I really believe that your final paragraph is the one clear message that came through all the ridiculous 'spinning' that both sides were engaging in yesterday."(98)
Awards from Abortion Supporters
Justice Blackmun was old and very tired; he wanted to escape the Court's heavy workload. Soon after Casey, he heard from a friend in Florida who remarked, "When I saw you at church in March, you told me you were going to wait for the elections -- that you felt you could endure one more year on the Court, but not much more....So I am going to do my best to help you retire by volunteering to do work for the Democratic ticket here in Florida." It's safe to assume that both Blackmun and his friend were much relieved when Democrat William J. Clinton, a veteran Roe supporter, was elected to the presidency. When Byron White retired in 1993, and Clinton replaced him with Ruth Bader Ginsburg, Blackmun felt Roe was secure.
People who were still upset with Justice Kennedy because of Casey would have been more so had they known that Kennedy urged Blackmun to stay on longer. In a private note written just after White announced his retirement, Kennedy said he had benefitted from Blackmun's "splendid juristic dedication" and that "you still inspire me to try to do better in my own work." He added, "It would be a great loss to this institution if Byron's successor were to be deprived of that same instruction....If you were to stay here a while longer, it would influence the Court for years to come."(99)
Blackmun stayed for another year, finally announcing his retirement in April, 1994. President Clinton praised him highly, as did many others. (Abortion opponents and conservatives issued sharp dissenting opinions.) There were tributes to him in law reviews at Harvard, Yale, Georgetown, and elsewhere. Blackmun had received many honorary degrees over the years, and there were more to come. He would receive at least 40 altogether, including ones from Harvard, Columbia, Dartmouth, Tufts, Emory, the University of Nebraska, and the Claremont Graduate School.(100)
Groups supporting abortion were also eager to honor him. Several had wanted to do it when he was still on the Court. In 1984 the Religious Coalition for Abortion Rights selected him for a religious freedom award. Blackmun told them he was "humbled by the suggestion" and added, "Coming as it does in the midst of vilification continuing since 1973, this demonstration of support means very much to me." But he suggested postponing "anything of this kind at least until beyond this election year."(101)
In 1986 the National Family Planning and Reproductive Health Association (NFPRHA) selected Blackmun for a distinguished public service award, to be presented at its annual meeting the following year. Blackmun agreed to accept the award, and the organization announced it on its telephone hotline. The ever-vigilant National Right to Life Committee noticed the announcement; and its president, Dr. John C. Willke, sent a letter of protest to Justice Blackmun. Willke said abortion providers made up much of NFPRHA's membership and that the group was a leading advocate of "legal abortion on demand and federal funding of abortion." He emphasized that it "engages in pro-abortion litigation in the federal courts." He contended that if Blackmun accepted the award, he would violate the American Bar Association's Code of Judicial Conduct
Blackmun quickly changed his mind and declined the award, but also declined to comment on the whole affair. Reporters wanted to know whether he had initially agreed to accept the award, and a NFPRHA leader called Blackmun's office for guidance on handling that question. Blackmun suggested that he just say "no comment" or not respond at all. The Justice added, "I dislike to retreat under fire &, if he speaks, that is the position he places me in. His opposition will make much of it." Ten years later, after he had retired from the Court, Blackmun accepted a lifetime achievement award from NFPRHA.(102)
In 1992 the Family Planning Council of Southeastern Pennsylvania asked Blackmun's permission to establish a Justice Harry A. Blackmun Reproductive Freedom Award. They wanted to present the first award to Blackmun himself at their gala fundraiser that year. The Council, an umbrella group, included among its members Planned Parenthood of Southeastern Pennsylvania--the lead plaintiff in Casey. The Supreme Court had decided Casey less than two months before the Council contacted Blackmun about the award, and Blackmun had sided with the Planned Parenthood group on nearly every issue.
It's possible, of course, that he didn't notice the group's name on the Family Planning Council letterhead. In any case, he told the Council that he shouldn't be present at their fundraiser, since the Canons of Judicial Ethics "frown upon a federal judge's participation in a fundraising activity." But he had no objection to their naming the award after him. The Council gave its Blackmun award to a succession of old warhorses of the abortion movement--including Faye Wattleton, Joycelyn Elders, Gloria Steinem, and Catholics for a Free Choice--and kept Blackmun apprised of each year's recipient. After his retirement, the Council presented the award to the Justice himself.(103)
The American College of Obstetricians and Gynecologists (ACOG) selected Blackmun for its 1994 public service award, presenting it to him just before Blackmun announced his retirement. According to the group's executive director, the award expressed "our appreciation to you for championing the reproductive rights of women in cases that have come before the Court." Those cases had included one in which ACOG was the lead plaintiff--the 1986 Thornburgh case. Blackmun had written the 5-4 majority opinion in that case, giving ACOG virtually everything it wanted.(104)
The Center for Reproductive Law and Policy at least waited until Blackmun announced his retirement. Its president and vice president, Janet Benshoof and Kathryn Kolbert, had both argued abortion cases before the Justice. The Center wanted to establish an endowed Blackmun Fellowship for young lawyers who would assist Center staff in "cutting edge litigation." Blackmun cooperated with this venture; but he explained that the inaugural dinner for the fellowship could not be a fundraiser, although it would be all right to charge for the cost of the dinner itself. The Center--before the dinner--raised large sums for the fellowship from wealthy people who had long supported population control and abortion. At the 1995 inaugural dinner, megabillionaire Warren Buffet and his wife were seated with the Blackmuns.(105)
There were other honors, too, in 1995. The National Abortion Federation--a trade group of abortion clinics--gave the retired Justice its Christopher Tietze Humanitarian Award. The New York Civil Liberties Union (NYCLU) cited Roe v. Wade in giving him a right-of-privacy award. And NARAL pulled out all the stops for a big dinner to honor him in 1995. (One expected attendee, by the way, was Linda Greenhouse, veteran Supreme Court reporter for the New York Times. According to Blackmun's secretary, NARAL president Kate Michelman "said that Linda Greenhouse will attend because she is a friend of NARAL, not because she is a reporter.")
The awards from groups supporting abortion did not raise questions about Blackmun's financial integrity, which apparently was above reproach. When the NYCLU Foundation tried to give the Justice the $5,000 that went with its award, Blackmun returned the check. It was "very generous" of them, he said, but "I have never taken an honorarium, and I certainly would not wish to start with the NYCLU." If the money had to "be paid out," he suggested that it be split between two scholarship funds.(106)
Yet Blackmun's acceptance of the awards certainly posed questions about his impartiality in the many abortion cases he had heard while on the Court. The award from ACOG, a plaintiff in a major case, raised such questions to an acute degree. The National Abortion Federation and NFPRHA, in their awards, were borrowing the prestige of high judicial office to advance private interests. But Blackmun had become such an intense partisan that he apparently gave little if any thought to these issues. He didn't seem to understand that much of the frustration and anger of abortion opponents resulted from their feeling that the deck was stacked against unborn children from the beginning; that often there was only a pretense of fairness; and that sometimes there was not even a pretense.
A Tragic Life
The tragedy of Blackmun's life and career was that a man who was good and kind in many ways became so concerned about women's difficulties with pregnancy that he was willing to overlook the humanity and the rights of unborn children in order to help women. He did this instead of finding ways to help one without harming the other. And he apparently didn't consider the possibility that to help a mother take the life of her child is actually an injustice to both. This was an ethical blindness he shared with many judicial colleagues and, indeed, millions of other Americans. They accepted superficial slogans and ideas, including the notion that switching from illegal to legal abortion would solve the basic problem. It never occurred to them that the basic problem was abortion itself.
In these notes, "BP" means the Harry A. Blackmun Papers at the Manuscripts Reading Room, Library of Congress, Washington, D.C. "BOH" refers to a 1994-95 series of oral-history interviews of the Justice by his former clerk, Prof. Harold Hongju Koh; the interview transcripts are available at the same location. (Although valuable, the interviews are not spontaneous; the recently-retired Justice knew the questions in advance and had time to do research, or have his clerks do research, on the cases and other subjects to be discussed.)
"Brennan Papers" are the papers of Justice William J. Brennan, Jr.; "Douglas Papers" are those of Justice William O. Douglas; and "Marshall Papers" are those of Justice Thurgood Marshall. The Brennan, Douglas and Marshall papers are also at the Manuscripts Reading Room, Library of Congress, Washington, D.C. (There are restrictions on the Brennan Papers.)
In correspondence within the Court, associate justices typically call each other by their first names and call the Chief Justice simply "Chief." For greater clarity, in these notes I refer to the justices by their last names alone--for example, "Blackmun to Burger." When a letter or memo was addressed to "the Conference," that meant all the justices.
My deep appreciation to the late Justice Blackmun's secretaries, who kept such excellent records, and to the Library of Congress staff who have been so helpful to my work in the Manuscripts Reading Room. I am also grateful to the estates of Justice Brennan and Justice Hugo Black for permission to review portions of the Brennan and Black papers.
1. "Justice Blackmun Sheds Robe in 'Plea' for Family Practice," Post-Bulletin [Rochester, Minn.?], 30 Nov. 1979, BP, box 1438. Sally Blackmun and her husband were admitted to the Supreme Court bar on this occasion.
2. David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court (New York: Wiley, 1992), 236-237; Bob Woodward and Scott Armstrong, The Brethren (New York: Simon and Schuster, 1979), 181-182. Blackmun said The Brethren contained "a lot of myth." He was, however, one of its authors' sources, as were four other justices, over 170 ex-law clerks, and a huge volume of leaked documents. BOH, 292; "sjb" to Blackmun, 30 June 1978, BP, box 1435; Woodward and Armstrong, 3-4; and John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. (New York: Scribner's, 1994), 389-392. Scott Armstrong had two interviews with Blackmun--rather than just the one brief interview that Blackmun remembered in 1995.
3. Nancy Blackmun Coniaris in Mariana Cook, Fathers and Daughters: In their Own Words (San Francisco: Chronicle Books, 1994), 80-83; and Nancy Blackmun, "A Eulogy for My Father's Memorial Service," Washington, D.C., 9 March 1999, 4-5 & 2-3, BP, box 1376.
4. BOH, 47-81 & 120; John A. Jenkins, "A Candid Talk with Justice Blackmun," New York Times Magazine, 20 Feb. 1983, 20 ff., 24; Nancy Blackmun, "A Eulogy" (n. 3), 5 & 3; and Harry Blackmun, "Comments Re 1962 MPH Meeting," 2 Nov. 1962, 3, BP, box 59.
5. Ruth Marcus, "Author of 'Roe' Remains Proud, Protective of It," Washington Post, 20 April 1992, A-4; BOH, 117; Gregg Orwoll, "Harry Andrew Blackmun," American University Law Review 43 (Spring 1994), 733; Edward Lazarus, Closed Chambers (New York: Random House/Times Books, 1998), 38-39; and BOH, 56-57 & 379-380.
6. Ibid., 476-477.
7. Nancy Blackmun Coniaris in Cook (n.3), 82; Savage (n. 2), 238; and BP, passim.
8. U.S. Congress, Senate, Committee on the Judiciary, Hearing on Nomination of Harry A. Blackmun..., 91st Cong., 2nd Sess., 29 April 1970, 43 & 37; BOH, 128, 444-446, 437 & 339; and Pamela S. Karlan, "Bringing Compassion into the Province of Judging: Justice Blackmun and the Outsiders," Dickinson Law Review 97 (Spring 1993), 527-540.
9. Jeffrey Rosen, "Sentimental Journey," The New Republic, 2 May 1994, 13 ff., 13 & 14.
10. Roe v. Wade, 410 U.S. 113 at 159, 157, 158, 161-162 & 153 (1973). See, also, 174-177 (Rehnquist, J., dissenting).
11. Ibid. at 164-165; and Doe v. Bolton, 410 U.S. 179 at 192 (1973).
12. Dale Kueter, "Blackmun: Resent Bringing Court into Abortion Issue," Cedar Rapids Gazette, 25 Jan. 1973, 1 & 7; BOH, 35-39, 187-188 & 459-461; Callins v. Collins, cert. denied, 510 U.S. 1141 at 1159 & 1145 (1994) (Blackmun, J., dissenting); Blackmun to Douglas, 19 May 1970, Douglas Papers, box 1780; BOH, 11; and Woodward and Armstrong (n. 2), 182.
13. Profiles of the justices are based on many sources, including standard books on the Court, biographies, and justices' papers at the Library of Congress. On law clerks' influence, see: Bernard Schwartz, Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996), 6 & 48-55; Douglas to Burger, 13 July 1972, Marshall Papers, box 78; and Edward Lazarus (n. 5), 262-275. (Lazarus clerked for Justice Blackmun in 1988-89.)
14. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003), 198, 269-271, 287-288, 338, 362-365, 367-377, 392-399, 427-429; and Juan Williams, Thurgood Marshall: American Revolutionary (New York: Times Books/Random House, 1998), 190-192, 306, 322, 345-346, & 386. Their behavior included adulterous affairs and one-night stands as well as unwanted grabbing and fondling of women.
15. Hugh Moore, "The Population Bomb," Sept. 1972, Hugh Moore Fund Collection, box 14, Seeley G. Mudd Manuscripts Library, Princeton University, Princeton, N.J.; and Lawrence Lader, Breeding Ourselves to Death (New York: Ballantine Books, 1971), 20, 27-33, 95, 21, 100 & 78. I assume that Moore, in noting multiple mailings to everyone in Who's Who, meant Who's Who in America.
16. Douglas to Hugh Moore, 12 June 1961; and Douglas to James Y. C. Yen, 17 June 1961, Douglas Papers, box 599. Douglas suggested that Yen, head of the model villages group, might be able to get "substantial contributions" from Moore. Yen responded positively to Douglas, 20 June 1961, ibid.; but I found no other correspondence on the subject through 1962.
17. Griswold v. Connecticut drafts, ibid., box 1347. The final opinion, without the reference to "the population problem," is Griswold v. Connecticut, 381 U.S. 479 (1965).
18. Woodward and Armstrong (n. 2), 167; BOH, 224-225 & 292. Justice Stewart's Supreme Court papers at Yale University Library, New Haven, Conn., will not be available to researchers until the last remaining justices with whom he served (Chief Justice Rehnquist and Justice Stevens) retire from the Court.
19. David J. Garrow, Liberty and Equality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), 349, 355-360, 364-365, 377-380, & 506; John Ensor Harr and Peter J. Johnson, The Rockefeller Conscience (New York: Scribner's, 1991), 403; and Richard Lewis, "An Attorney's Crusade to Overturn Controls," American Medical News, 16 Feb. 1979, 11 ff. In coordinating amicus briefs, Association for the Study of Abortion (ASA) staff "kept careful watch over the language...for example, they substituted 'fetus' for 'baby.'" They also used "pro-choice" instead of "pro-abortion." Lee Epstein and Joseph F. Kobylka, The Supreme Court and Legal Change: Abortion and the Death Penalty (Chapel Hill, N.C.: University of North Carolina Press, 1992), 171. ASA's calculated depersonalization of the unborn was both manipulative and highly effective.
20. Williams and Tietze were both members of England's Eugenics Society; see www.africa2000.com, "Eugenics Watch...The British Eugenics Society, 1907 to 1994." On Lader and Means, see Garrow (n. 19), passim; and Lawrence Lader, Abortion II: Making the Revolution (Boston: Beacon Press, 1974), 91, 218, 104 & passim. See, also, Rebecca Messall, forthcoming article in Human Life Review.
21. Rachel MacNair, Mary Krane Derr and Linda Naranjo-Huebl, Pro-life Feminism Yesterday and Today (New York: Sulzburger & Graham, 1995), 60, 41-50, & 136; and Betty Friedan, It Changed My Life: Writings on the Women's Movement (New York: Random House, 1976), 12-13 & 120-128, 123.
22. For information on Feminists for Life of America, see www.feministsforlife.org.
23. Woodward and Armstrong (n. 2), 183 & 238; BOH, 198-199; Cynthia L. Cooper, "Daughter of Justice Blackmun Goes Public about Roe," Women's e News, 29 Feb. 2004, www.womensenews.org.
24. E. Wayne Thode, Reporter's Notes to Code of Judicial Conduct (n.p.: American Bar Association, 1973),  & 8; and Sally Blackmun, "Introduction" to Gloria Feldt with Laura Fraser, The War on Choice (New York: Bantam Books, 2004), xviii-xix.
25. Cooper (n. 23). Sally Blackmun later remarried and had two children.
26. U.S. Congress (n. 8), 7; BOH, 54, 111 & 113; Jane Hodgson, "Ex-Mayo Doctor on Trial Explains Abortion Views," Rochester, Minn., Post-Bulletin, 17 Nov. 1970, 25 & 32; Sharon Blinco, "Dr. Hodgson Claims 'Hypocrisy' in Abortion Law," Minneapolis Tribune, 18 Nov. 1970, 1 & 4; Garrow (n. 19), 474 & 501. See, also, Pratt letters supporting the Supreme Court's abortion decisions: Joseph H. Pratt to Blackmun, 24 Jan. 1973, BP, box 68; and J. H. Pratt to Blackmun, 31 Jan. 1989, ibid., box 105.
27. Blackmun, "Memorandum to the Conference," 25 May 1972, Douglas Papers, box 1590.
28. BOH, 192; Fred A. Lyon, "Abortion Laws," Minnesota Medicine 50 (Jan. 1967), 17-22, 17; and Philip N. Bray, "Therapeutic Abortion," ibid., 129-136, 131.
29. U.S. Congress (n. 8), 8; BP, box 1535, folder 5; and Nancy Strobel, "St. Marys Refuses Abortions, Mayo Policy Remains Uncertain," Rochester, Minn., Post-Bulletin, 24 Jan. 1973.
30. Paige Carlin, "Conference Acts...Tensions Relax," Together 14 (July 1970), 11-17, 15; and "Methodists Back Legal Abortion," St. Louis Post-Dispatch, 24 April 1970, 10-A.
31. Hugh Moore to Emerson Foote, 23 Dec. 1971 (two letters); Thomas J. Furlong to George Granger, 23 Dec. 1971; and Rodney Shaw to Hugh Moore, 7 Jan. 1972 (two letters), Hugh Moore Fund Collection, box 18, Seeley G. Mudd Manuscripts Library, Princeton University, Princeton, N.J.; Garrow (n. 19), 463; and "Contributions to the James Madison Constitutional Law Institute, Inc., 1969-1972," in Roy Lucas to John Maier, 6 June 1972, Record Group (A 79), Series 200 A, folder on "Madison Const. Law Institute, Pop. Law," Rockefeller Archive Center, Sleepy Hollow, N.Y.
32. For information on the pro-life Taskforce of United Methodists on Abortion and Sexuality (TUMAS), see its quarterly newsletter Lifewatch at www.lifewatch.org. For official United Methodist statements on abortion, see United Methodist News Service at www.umns.umc.org/resourcesforeditors/backgrounders/abortion.
33. U.S. Congress (n. 8), 8; and "New Associate Justice Praised by Minister," Together 14 (July 1970), 18-19. So far I have found no Blackmun correspondence about his church's 1970 decision to support legalized abortion. But soon after he joined the Supreme Court, he sent to Rochester Methodist Hospital many old files related to it. Blackmun to Howard Winholtz, 25 Aug. 1970, BP, box 1448. Those files are not part of the Blackmun papers at the Library of Congress.
34. Linda Greenhouse, "Lewis Powell, Crucial Centrist Justice, Dies at 90," New York Times, 26 Aug. 1998, A-1 & D-19; Jeffries (n. 2), 346-347; Woodward and Armstrong (n. 2), 230. Justice Powell's papers at the Washington and Lee University School of Law, Lexington, Va., are available to researchers.
35. BOH, 203, 195 & 494; and Ronald L. Trowbridge, With Sweet Majesty, Warren E. Burger (Washington: Trust for the Bicentennial of the United States Constitution, 2000), 186. Chief Justice Burger's papers at the College of William and Mary, Williamsburg, Va., will be open to researchers in 2026.
36. Dennis J. Hutchinson, The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White (New York: Free Press, 1998), 5-6 517, 368 & 3. Justice White's papers at the Library of Congress will be open to researchers in 2012. According to a Supreme Court spokeswoman, 26 July 2004, Chief Justice Rehnquist has not designated a library to receive his papers.
37. Lader (n. 20), 1-16 (Vuitch quote on 8-9); Bart Barnes, "Milan M. Vuitch, 78, Dies; Challenged Abortion Laws," Washington Post, 10 April 1993, B-6; Donald Hirzel, "Vuitch Indicted in Another Abortion Case," Washington Star, 1 Sept. 1970, B-1; "New Vuitch Case Hit as 'Persecution,'" ibid., 2 Sept. 1970, C-4; Ed Bruske, "$150,000 Payment Set in Abortion Clinic Suit," Washington Post, 19 Aug. 1983, B-2; and Kevin Sherlock, Victims of Choice (Akron, Ohio: Brennyman Books, 1996), 20 & 21.
38. John P. MacKenzie and Stuart Auerbach, "D.C. Abortion Law Upheld By Supreme Court, 5 to 2," Washington Post, 22 April 1971, A-1 & A-9; and United States v. Vuitch, 402 U.S. 62 at 72 (1971).
39. Henry Aubon, "Abortion Forces Bid to Push Washington Into Big League," Washington Post, 7 June 1971, C-1 & C-2.; and Kitty Kelley, "The New Legal Abortion Business in Washington," ibid., Potomac magazine, 19 Sept. 1971, 20 ff.
40. United States v. Vuitch (n. 38) at 96-97 (Stewart, J., dissenting in part). Brennan and Marshall did not vote on the merits of the case. Blackmun voted with the majority on the merits.
41. Supplemental Brief for Planned Parenthood Federation of America and American Association of Planned Parenthood Physicians as Amici Curiae at 20-21, Roe v. Wade (n. 10) and Doe v. Bolton (n. 11).
42. Blackmun to Rehnquist, 20 July 1987, BP, box 151.
43. Garrow (n. 19), 528-533; and Bernard Schwartz, The Unpublished Opinions of the Burger Court (New York: Oxford University Press, 1988), 84-86. As Schwartz notes, various justices counted the votes differently.
44. Epstein and Kobylka (n. 19), 184; Woodward and Armstrong (n. 2), 170-172.
45. Douglas to Burger, 18 Dec. 1971, Douglas Papers, box 1590; and Burger to Douglas, 20 Dec. 1971, Marshall Papers, box 99.
46. Blackmun correspondence with Thomas E. Keys, Dec. 1971 & Jan. 1972, BP, box 152, folder 2; BOH, 194; Blackmun to Burger, 18 Jan. 1972, BP, box 132; Burger to the Conference, 31 May 1972, Douglas Papers, box 1590; Woodward and Armstrong (n. 2), 176-177.
47. Douglas, "Memorandum from Mr. Justice Douglas" on Doe v. Bolton [marked "File Not cir 12/21/71"], Douglas Papers, box 1590; and Douglas to Brennan, 22 Dec. 1971, ibid.
48. Brennan to Douglas, 30 Dec. 1971, 1, 10, 3 & 4, ibid.
49. Ibid., 6-8; Eisenstadt v. Baird, 405 U.S. 438 at 453 (1972); Woodward and Armstrong (n. 2), 175-176; Garrow (n. 19), 541-542; and Lazarus (n. 5), 364-365.
50. Roger Goldman with David Gallen, Justice William J. Brennan, Jr.: Freedom First (New York: Carroll & Graf, 1994); and Brennan to Douglas (n. 48), 5-8.
51. Ibid., 8-9; and Tom C. Clark, "Religion, Morality, and Abortion: A Constitutional Appraisal," Loyola University of Los Angeles Law Review 2 (April 1969), 1-11, 9-10.
52. In his 1957 confirmation hearing, asked about possible conflict between his religious views and his oath to support the U.S. Constitution and laws, Brennan had said that it "is that oath and that alone which governs." Kim Isaac Eisler, A Justice for All: William J. Brennan, Jr., and the Decisions that Transformed America (New York: Simon & Schuster, 1993), 118-119. But Brennan may have been influenced by the pro-legal-abortion views of Rep. Robert Drinan (D-Mass.), the Jesuit priest and congressman. In 1975 Blackmun told Drinan that Brennan had "spoken of you glowingly a number of times..." Writing someone else about a strongly pro-life Catholic bishop, Blackmun remarked that Brennan "regards him as a member of the church's right wing." Blackmun to Robert F. Drinan, 26 Sept. 1975, BP, box 92; and Blackmun to Randall P. Bezanson, 25 April 1975, ibid., box 1553.
53. Doe v. Bolton (n. 11) at 209-221 (Douglas, J., concurring); Douglas to Blackmun, 19 May 1972, Marshall Papers, box 99; and Blackmun to Douglas, 22 May 1972, Douglas Papers, box 1590.
54. Blackmun to the Conference, 18 May 1972, Douglas Papers, box 1589; Blackmun, first draft of Roe v. Wade opinion, circulated 18 May 1972, BP, box 151; Brennan to Blackmun, 18 May 1972, Marshall Papers, box 99; Douglas to Blackmun, 19 May 1972, ibid.; and Blackmun to the Conference, 25 May 1972, 2, Douglas Papers, box 1590.
55. Ibid.; Blackmun, "Memorandum of Mr. Justice Blackmun" on Doe v. Bolton, first draft, circulated 25 May 1972, ibid., box 1589; Brennan, draft of memo to Blackmun, May 1972, 3, ibid., box 1590, and Brennan Papers, box 286. Garrow indicates that Brennan did not send the draft, but "reportedly conveyed the contents of the letter to a seemingly receptive Blackmun face-to-face." Garrow (n. 19), 864-865, n. 93.
56. Blackmun to the Conference, 18 May 1972, (n. 54); Garrow (n. 19), 551-552; and Blackmun to the Conference, 31 May 1972, BP, box 151.
57. Garrow (n. 19), 552-554; Douglas to Blackmun, 31 May 1972, Douglas Papers, box 1590; and Burger to the Conference (n. 46).
58. Garrow (n. 19), 554-556; Woodward and Armstrong (n. 2), 186-187; and Powell to the Conference, 1 June 1972, Douglas Papers, box 1590.
59. Brennan to Douglas, June 1972, ibid.; Douglas to Burger, 1 June 1972, ibid.; and Douglas, "Memorandum from Mr. Justice Douglas" on Roe v. Wade and Doe v. Bolton, first draft [marked "For Justice Brennan only, 6-2-72"], 3, ibid., box 1589.
60. James F. Simon, The Center Holds: The Power Struggle Inside the Rehnquist Court (New York: Simon & Schuster, 1995), 103-104 & 309, n. 104; Woodward and Armstrong (n. 2), 188-189; and Garrow (n. 19), 555-556.
61. "Move by Burger May Shift Court's Stand on Abortion," Washington Post, 4 July 1972, A-1 & A-10; Garrow (n. 19), 557-558; Douglas to Burger, 4 July 1972, Douglas Papers, box 1589; Burger to Douglas, 27 July 1972, 3 & 1, ibid.; and Douglas to Burger, 7 Aug. 1972, ibid.
62. BOH, 19-20 & 196-198; and Roe v. Wade (n. 10) at 130-132.
63. "George" to Blackmun, 11 Aug. 1972, 8, 2 & 4, BP, box 152. Other material in the Blackmun Papers indicates this was George Frampton.
64. U.S. Supreme Court, Transcript of Oral Arguments in Roe v. Wade and Doe v. Bolton, Washington, D.C., 11 Oct. 1972; and Roe v. Wade (n. 10) at 141-142 & 151. On this point, see Robert M. Byrn, "An American Tragedy: The Supreme Court on Abortion," Fordham Law Review 41 (May 1973), 807-862 at 827-835; James S. Witherspoon, "Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment," St. Mary's Law Journal 17, no. 1 (1985), 29-77; and Ramesh Ponnuru, "Aborting History," National Review, 23 Oct. 1995, 29-32.
65. Garrow (n. 19) 573-576; BOH, 202 & 494; and Schwartz (n. 43), 148.
66. Jeffries (n. 2), 341-343; Powell to Blackmun, 29 Nov. 1972, BP, box 151; Blackmun to the Conference, 11 Dec. 1972, ibid.; Mark V. Tushnet, Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (New York: Oxford University Press, 1997), 6-7; BOH, 167-168; Garrow (n. 19), 581-585; and Marshall to Blackmun, 12 Dec. 1972, BP, box 151.
67. Douglas to Blackmun, 11 Dec. 1972, ibid.; Stewart to Blackmun, 14 Dec. 1972, ibid.; and Roe v. Wade (n. 10) at 160 & 163-165.
68. Woodward and Armstrong (n. 2), 233.
69. Doe v. Bolton (n. 11) at 221-223 (White, J., dissenting). Rehnquist joined this dissent, which also applied to Roe v. Wade.
70. Roe v. Wade (n. 10) at 172 & 174-177 (Rehnquist, J., dissenting); and "U.S. States," Webster's New World College Dictionary, 3rd ed., 1581.
71. Doe v. Bolton (n. 11) at 192; and Roe v. Wade (n. 10) at 163-164.
72. Powell to "Dottie" [Blackmun], 22 Jan. 1973, BP, box 151; John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," Yale Law Journal 82 (April 1973), 920-949 at 947; John T. Noonan, Jr., "Raw Judicial Power," National Review, 2 March 1973, 260-264; Roe v. Wade (n. 10) at 162; David J. Cocke, "Abortion Decision Stirs Controversy," Harvard Law School Record, 9 Feb. 1973, 5; Byrn (n. 64); Witherspoon (n. 64); Garrow (n. 19), 609-616 (including criticism from abortion supporters who thought Roe placed too much emphasis on the doctor's role and/or should have used arguments based on equal rights instead of privacy); and Randall Bland, "The Making of an Advocate," in Roger Goldman with David Gallen, Thurgood Marshall: Justice for All (New York: Carroll & Graf, 1992), 22-23.
73. Kueter (n. 12); and Bob Lundegaard, "Blackmun Calls Abortion Rule Supreme Court Turning Point," Minneapolis Tribune, 5 Feb. 1974, 1-A & 11-A.
74. R. B. Ryan to Blackmun, 24 Jan. 1985, BP, box 73; Patricia Lowry to Douglas (who passed the letter on to Blackmun), 22 Feb. 1973, ibid., box 1404; Ace O'Brien to Blackmun and others, 12 June 1986, ibid., box 73; and Carl Laurent to Blackmun, 16 June 1986, ibid.
75. Josephine Zain to Blackmun, 16 Jan. 1989, ibid.; Joe and Kay Crnkovich to Blackmun, 16 June 1986, ibid.
76. Unsigned letter to Blackmun, 6 March 1979, ibid., box 74; Susan Bender to Blackmun, 6 Feb. 1974, ibid.; and Blackmun to Mrs. Beekman Pool, 15 Oct. 1973, ibid., box 68.
77. William A. Holmes to Blackmun, 19 Sept. 1975 & 26 Feb. 1976, ibid., box 1522. See, generally, boxes 1460-1462.
78. William A. Holmes to Blackmun, 21 Jan. 1985, ibid., box 1461; Norman St. John-Stevas, The Right to Life (New York: Holt, Rinehart and Winston, 1964), 15; and Blackmun to William A. Holmes, 24 Jan. 1985, BP, box 1461.
79. Lyle T. Christianson to Blackmun, 4 Feb. 1983, ibid., box 1462; and R. Bruce Poynter to Blackmun, 24 July 1986, ibid., box 1461.
80. Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979); and H. L. v. Matheson, 450 U.S. 398 (1981).
81. Planned Parenthood of Missouri v. Danforth (n. 80) at 98-99 (White, J., dissenting).
82. Brief for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology as [Amici] Curiae at 10-25, Roe v. Wade (n. 10) and Doe v. Bolton (n. 11); Brief for Appellee at 35-51, Roe v. Wade (n. 10); Douglas to Blackmun, 17 May , BP, box 1404; and Dr. and Mrs. [Barbara] J. C. Willke, Handbook on Abortion (Cincinnati: Hiltz Publishing Co., 1972), ibid.
83. Beal v. Doe, 432 U.S. 438 (1977) at 452 (Brennan, J., dissenting), 459-461 (Marshall, J., dissenting), & 462-463 (Blackmun, J., dissenting) (1977); and Blackmun to Marshall, 12 Nov. 1980, Marshall Papers, box 279.
84. Powell, first draft in City of Akron v. Akron Center for Reproductive Health, circulated 3 March 1983, BP, box 369; Brennan to Powell, 8 March 1983, ibid., Blackmun to Powell, 8 March 1983, ibid., Powell to Brennan, 9 March , ibid.; Powell to Blackmun, 9 March , ibid.; and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).
85. Bruske (n. 37); Margaret Engel, "Doctor Faces License Battle," Washington Post, 11 Nov. 1984, B-1 & B-4; Margaret Engel, "Dr. Vuitch Surrenders D.C. License," ibid., 21 Dec. 1984, B-1 & B-6; and Barnes (n. 37).
86. WFO to FBI Director and others, 2 Oct. 1984, BP, box 1576; FBI Director to All Continental Offices, 12 Oct. 1984, ibid.; Robert H. Borruso to Alfred Wong, with attached threat, 27 Feb. 1985, ibid., box 1455. The threatening note was unsigned and undated, but its envelope bore the return address of Nate Lowery and was postmarked 25 Feb. 1985.
87. Michael Specter, "Shot Fired Through Blackmun's Window," Washington Post, 5 March 1985, A-1 & A-6; and "wsm" [Wanda S. Martinson] to Robert H. Borruso, 5 March 1985, BP, box 1455.
88. Ben A. Franklin, "Bullet That Hit Blackmun Home Seen by Police as a Random Shot," New York Times, 7 March 1985, A-25; Nancy Scannell, "Blackmun Apparently Not a Target," Washington Post, 13 Jan. 1986, B-5; and Susie Blackmun, "Roe v. Wade: Its Impact Upon the Author and His Family," Conscience 18 (Winter 1997/98), 17-18.
89. FBI WMFO to Director FBI...Atlanta, 18 April 1994, BP, box 1576; and FBI Atlanta to Director FBI...WMFO, 21 April 1994, ibid.
90. Epstein and Kobylka (n. 19), 252-260; and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 at 759, 762 & 771 (1986).
91. Ibid. at 805-809 (White, J., dissenting) and 785 (Burger, C.J., dissenting).
92. Epstein and Kobylka (n. 19), 265-287; and Linda Brubaker to Blackmun, 14 April 1989, BP, box 1461.
93. Webster v. Reproductive Health Services, 492 U.S. 490 at 538, 557-558 & 560 (1989) (Blackmun, J., concurring in part and dissenting in part).
94. Ibid. at 537 (Scalia, J., concurring). See Lazarus (n. 5), 373-424, for an interesting but partisan account of Webster. Lazarus worked for Blackmun on the case.
95. William A. Holmes, "Christians and Abortion," Washington, D.C., 9 July 1989, [4 & 5], (attached to Holmes to Blackmun, 25 Sept. 1989), BP, box 1461; and Blackmun to Holmes, 10 July 1989, ibid.
96. Lazarus (n. 5), 462; and "MM" [Molly McUsic], "Attachment," 4 Jan. 1992, BP, box 602.
97. Lazarus (n. 5), 459-486; Charles Lane, "How Justices Handle a Political Hot Potato," Washington Post, 5 March 2004, A-1 & A-13; Kennedy to Blackmun, 29 May 1992, with attached Blackmun notes, 30 [May] 1992, BP, box 601. There has been much speculation about Kennedy's motives. See Terry Eastland, "The Tempting of Justice Kennedy," American Spectator, Feb. 1993, 32-37; and Jeffrey Rosen, "The Agonizer," New Yorker, 11 Nov. 1996, 82-90.
98. "Steff" [Stephanie Dangel] to Blackmun, 16 June 1992, , BP, box 602; Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 at 943 (1992) (Blackmun, J., concurring in part & dissenting in part); [Stephanie Dangel] to Blackmun, 26 June 1992, 1, BP, box 602; Blackmun to Stevens, 27 June 1992, ibid., box 601; and [Stephanie Dangel] to Blackmun, 1 July 1992, ibid., box 602.
99. Mary Morrow to Blackmun, 17 July 1992, ibid., box 1461; and Anthony M. Kennedy to Blackmun, 19 March 1993, ibid., box 1405.
100. American University Law Review 43 (Spring 1994); Yale Law Journal 104 (Oct. 1994); Georgetown Law Journal 83 (Nov. 1994); Harvard Law Review 108 (Nov. 1994); North Dakota Law Review 71, no. 1 (1995); and "Harry A. Blackman: Biographical Data," Aug. 1995, BP, box 1370.
101. Mary Jane Patterson to Blackmun, 10 April 1984, ibid., box 1355; and Blackmun to Patterson, 17 April 1984, ibid.
102. Scott R. Swirling to Blackmun, 14 Oct. 1986 and 17 Nov. 1986, BP, box 1525; John C. Willke to Blackmun, 2 Dec. 1986, ibid.; National Right to Life Committee, "Justice Blackmun's Intent to Receive Pro-Abortion Award Would Violate Ethical Rules..." 2 Dec. 1986, ibid.; Toni [House] to Blackmun, 2 Dec. 1986, ibid.; [Wanda S. Martinson] to Blackmun, 2 Dec. 1986 (with Blackmun's response), ibid.; and NFPRHA, program for Silver Anniversary Gala Awards Dinner, Washington, D.C., 29 Feb. 1996, ibid.
103. Dorothy Mann to Blackmun, 14 Aug. 1992, ibid., box 1504; Blackmun to Mann, 25 Aug. 1992, ibid.; other correspondence in ibid., folder 2; and Planned Parenthood of Southeastern Pennsylvania v. Casey (n. 98) at 922-943 (Blackmun, J., concurring in part and dissenting in part).
104. Ralph W. Hale to Blackmun, 25 Aug. 1993, BP, box 1476; Blackmun to Hale, 8 Sept. 1993, ibid.; and Thornburgh v. American College of Obstetricians and Gynecologists (n. 90) at 750-772.
105. Janet Benshoof to Blackmun, 15 April 1994, BP, box 1496; Blackmun to Ellen Goetz, 1 May 1995, ibid.; Benshoof to Blackmun, 8 Aug. 1995, ibid.; Center for Reproductive Law and Policy, "Numerical Table List" [apparently for 8 Nov. 1995 Blackmun Fellowship dinner], ibid.
106. BP, box 1355, folder 13; ibid., box 1527, folder 7; ibid., box 1524, folders 11 & 12; [Wanda S. Martinson] to Blackmun, 19 May 1995, ibid., folder 12; and Blackmun to Lesly I. Lempert, 3 May 1995, BP, box 1527.