Author of the Abortion Decision -- and Man of Justice

April 08, 1994|By ELLEN GOODMAN

Boston. -- The news stories all described him the same way: ''Justice Harry Blackmun, the author of the abortion decision.'' The byline on one decision followed him through his years on the bench. Now it follows him into retirement.

It's the byline that brought protesters to the courthouse. It's the name that brought hate letters to the mailbox. It's the name that bred a score of malicious nicknames: butcher, Hitler, Pontius Pilate.

Surely, there are labels this gentle, careful justice would have preferred. He liked to call himself ''Old Number Three,'' a humble reminder of the fact that he was chosen by Richard Nixon after two other nominees were rejected by the Senate. He wanted to be known ''as a good worker in the vineyard who held his own and contributed generally to the advancement of the law.'' He saw himself as someone who rejected labels -- left, right or center -- in favor of justice. But from the day the Minnesota son of a grocer reluctantly agreed to write the decision of a lifetime, he became ''Justice Blackmun, the author of the abortion decision.'' ''We all pick up tags,'' he once said later and philosophically. ''I'll carry this one to my grave.''

This pivotal opinion that heaped so much emotion -- so much gratitude and so much vitriol -- at his doorstep was conceived with caution and compromise. Though Justice Hugo Black had once told Mr. Blackmun never to display agony in his decisions, the justice broke with this cool legal tradition in an opening that rings true today:

''We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.

''One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family, and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and color one's thinking and conclusions about abortion.''

When these words were first published, back-alley abortion wasn't just an expression and the coat hanger wasn't just a symbol on a political button. They were real. So were the women.

Unlike others on the Supreme 'We're dealing with people,' he liked to say.

Court, Justice Blackmun never narrowed his range of vision to see only abstract principles. ''We're dealing with people,'' he liked to say. One of them was a Texas woman known as Jane Roe.

In 1973, Mr. Blackmun was among the seven justices who voted to overturn the law in 48 states. He was just one in a solid majority who determined that a woman's fundamental right of privacy was ''broad enough to encompass a woman's decision whether or not to terminate her pregnancy.''

But over the next years, Justice Blackmun, the author, became Justice Blackmun, the defender. Through the 1980s the pro-choice majority slipped to a margin of three, two, and then one. When someone wrote asking if he would retire so a Republican president could appoint someone more conservative, he responded: ''Dear Mr. So-and-So: No. Sincerely, Harry A. Blackmun.''

As a new court nibbled and then chewed away at the right to abortion, he warned again and again, ''I fear for the future. . . . The signs are evident and a chill wind blows.'' But as pro-choice activists worried about his health and age, Mr. Blackmun held on tenaciously into his 80s and the 1990s until the tide turned.

This modest, conservative father of three daughters also grew in his own understanding of what abortion meant. The right to abortion wasn't just a matter of privacy, not just the business of doctors and patients, but a matter of liberty.

This week he said, ''I think it was right in 1973, and I think it is right today. It's a step that had to be taken as we go down the road toward the full emancipation of women.''

Today, pro-choice people worry less about the Supreme Court overturning Roe v. Wade and more about the statehouses undermining it. The pro-life attempt to make abortion illegal has turned into an attempt to make abortion unavailable. The controversy that Mr. Blackmun described eloquently in his opening words continues and so does the longing in the country to move on.

Soon, attention will turn to his successor. But those of us who remember the bad old days owe a lot to the man named, tagged, labeled ''Harry Blackmun, the author of the abortion decision'' -- and a man of justice.

Ellen Goodman is a syndicated columnist.

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