Linda Greenhouse: The Evolution of Justice Blackmun (He Wasn't Always Sensitive to Women's Rights)

Roundup: Talking About History

Linda Greenhouse, in the NYT (4-10-05):

The battle over abortion, now flaring again with the prospect of change at the Supreme Court, has been raging for so long that its origins have been largely lost to time and myth. During the 32 years since the court decided Roe v. Wade, the right to abortion has become so entwined, both in political discourse and in the public mind, with women's rights in general that it is tempting to assume that the middle-aged men who voted in 1973 to overturn state abortion laws thought they were striking a blow for women's equality.

The collected papers of Roe's author, Justice Harry A. Blackmun, show a more complicated reality, illuminating what turns out to be a highly tenuous connection between the abortion cases and the cases on women's equality that reached the Supreme Court simultaneously in the early 1970's.

The Library of Congress, following Blackmun's instructions, opened his papers to the public in March of last year, on the fifth anniversary of his death. The voluminous files, which occupy more than 600 feet on the shelves of the library's manuscript division, include not only detailed records of the business the court conducted during the 24 years he served there, but also memos and annotations that reveal Blackmun's own efforts to grapple with the issues presented by the thousands of cases he encountered. The record of his personal responses to the briefs and arguments in many of the cases indicates a kind of interior monologue that ranged across the court's docket. His papers tell an intensely personal story even as they open a window on a period of Supreme Court history that is in many ways as pertinent today as it was when he and his fellow justices were trying to understand and respond to a changing world.

Named to the court by Richard Nixon, Harry Blackmun took his seat in June 1970. Two abortion cases arrived at the court's door in the following months: Roe v. Wade, challenging a Texas law that made abortion a crime in nearly all instances, and Doe v. Bolton, a case from Georgia, where a new ''reform'' law permitted some abortions, though under stringent regulations. Federal courts in both states had ruled that the Constitution gave women a right to decide whether to carry a pregnancy to term.

For Blackmun, who had spent nine years as general counsel to the Mayo Clinic and who held the medical profession in high regard, state laws that criminalized abortion were indeed troublesome -- not, particularly, because they interfered with the rights of women but because they put doctors at risk for using their best judgment in treating their pregnant patients. Among Blackmun's files is an article from the Mayo alumni magazine by Dr. Jane E. Hodgson, a prominent Minnesota obstetrician and Mayo alumna who had been prosecuted for performing an abortion on a patient who contracted German measles early in pregnancy, a circumstance known to carry a high risk of birth defects. ''Someday, abortion will be a humane medical service, not a felony,'' Dr. Hodgson boldly predicted. Leading medical organizations had recently dropped their longstanding opposition to legal abortion and filed briefs with the court depicting criminal abortion laws as a threat to public health.

The degree to which these developments influenced both Blackmun and the other members of his 7-to-2 majority in Roe v. Wade is strikingly clear from the opinion itself. ''The decision vindicates the right of the physician to administer medical treatment according to his professional judgment,'' Blackmun wrote in a key summary paragraph. To the extent the decision vindicated the rights of women, it was by proxy, through their (mostly male) doctors.

Harry Blackmun served another 21 years on the court after Roe v. Wade, retiring in 1994 at the age of 85. By then, he had long since become an icon of feminism. Just as he was reviled by opponents of abortion, he was treated worshipfully by women's rights groups. Yet Blackmun came slowly to the cause of women's equality, and his papers show just how improbable an icon he was.

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