Harry Blackmun and Roe vs. Wade

April 07, 1994

Justice Harry Blackmun, who announced yesterday his retirement at the end of the Supreme Court's current term, long ago accepted it as his fate to be known as the author of Roe vs. Wade, the 1973 opinion asserting a constitutional right to an abortion. He is still getting hate mail for it. He is also still getting professional criticism for it.

Many constitutional scholars say he created the right to abortions out of a humane philosophy developed by his close association with the Mayo Clinic, rather than out of constitutional history and precedents. It was a doctors' decision, not a lawyers'. That may be, but, as he reminded people yesterday, he wrote for a seven-member majority of the court. Furthermore, recent legal scholarship shows much stronger, more compelling constitutional precedents existed for the decision by 1973 than many commentators would have you think.

Constitutional theory aside, Roe vs. Wade is a rewarding essay on birth, life, gender, religion and the law. Justice Blackmun has every right to be proud of it, not only for the emancipation of women it produced, but for its wisdom and tone. Few public debates have matched the debate on abortion for excess, enmity and ugly passion (on both sides). Roe vs. Wade is marked by none of that.

Justice Blackmun wrote many decisions that read like ageless essays, full of insights into the human condition. His decision allowing organized baseball to keep its anti-trust status begins with what can only be described as an ode to the national pastime (he keeps the Baseball Encyclopedia in his chambers). In a case involving college admissions, he summed up the dilemma of affirmative action and racism and the history that preceded it in a single paragraph:

"In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some people equally, we must treat them differently. We cannot -- we dare not -- let the Equal Protection Clause perpetrate racial supremacy."

Justice Blackmun wrote a compelling, lawyerly defense of the death penalty in 1972, and this year he wrote a compelling, personalized, humanized rejection of it. In a way this captured his journey and growth on the Supreme Court. He began his tenure as its second most conservative justice. He ends it as its second most liberal.

Times change, as do justices, and his sort of career and constitutionalism are not unheard of. In the affirmative action case, Justice Blackmun quoted Woodrow Wilson to capture his philosophy of the law: "The Constitution of the United States is not a mere lawyers' document: it is a vehicle of life, and its spirit is always as the spirit of the age."

Justice Blackmun moved against the current of political thought in the 1970s and 1980s. But it is too soon to say whether he or that current represented the true spirit of the age. That is for historians of the future to decide. Either way, they will, we believe, give him very high marks.

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