Brennan continued, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”17
So the right to privacy means everything and nothing. It has no constitutional basis and no tangible form. But what is clear is that the Supreme Court, by usurping the legislature’s authority to set social policy, has seized from the people the power to make such determinations. A mere five justices are now able to substitute their personal judgments for those of Congress and every state government in the name of privacy rights. This quiet revolution against representative government has gone largely unnoticed. The exception is the occasional Court decision on “hot button” issues in which the attention is mostly on the Court’s ruling, not on its abuse of power.
Also notice how Brennan inserted the phrase to “bear or beget a child” in the opinion. The case was about contraceptives, which affect only the begetting of children. Yet Brennan explicitly added the concept of bearing a child as well. He was subtly laying the foundation to extend the right of privacy to encompass the right to abortion. This occurred at a time when Roe v. Wade—a case involving abortion—had twice been argued before the Court but had not yet been decided. Notice how the judicial activists work—inserting a word in a majority opinion here and there, inserting a phrase in a dissenting opinion, all the while biding their time until five justices can be convinced to join the cause.
The facts of Roe are straightforward. “Roe” (the pseudonym for Norma McCorvey, a pregnant woman from Texas) could not legally obtain an abortion in Texas, where it was a crime to procure an abortion or to attempt to perform an abortion, except “by medical advice for the purpose of saving the life of the mother.”18 The central issue was whether Roe had a right to abort her baby although her life was not at risk.
Roe provides an opportunity to explore how external influences, as well as a justice’s personal foibles and prejudices, contribute to judicial activism. Justice Harry Blackmun, who wrote the majority opinion, was nominated by President Richard Nixon in 1970 as a judicial conservative. Indeed, one of Nixon’s campaign issues in 1968 was the liberalism of the Supreme Court under Chief Justice Earl Warren. What particularly annoyed Nixon and other Republicans was that some of the Court’s staunchest liberals, Justices Earl Warren and William Brennan among them, had been nominated by President Dwight Eisenhower, a Republican. Nixon thought the Court was a “disaster,” filled with “senile old bastards” and “fools.” He was disgusted at how Justice Potter Stewart, another Eisenhower appointee, had been “overwhelmed by the Washington Georgetown social set” and had turned out to be “weak” and “dumb.”19 Nixon wanted to make sure he appointed justices to the Supreme Court who believed in following the original intent of the Constitution. He replaced the retiring Earl Warren with Warren Burger of Minnesota.
Filling Justice Abe Fortas’s seat was more difficult. The Senate rejected Nixon’s first two nominees, Clement Haynsworth of South Carolina and Harrold Carswell of Florida. Nixon abandoned his attempts to name a southerner to the Court and considered Blackmun, another Minnesotan, who was a judge on the Eighth Circuit Court of Appeals and former counsel to the prestigious Mayo Clinic. As Nixon’s third choice, Blackmun later called himself “Old Number 3.” 20 Assistant Attorney General William Rehnquist vetted Blackmun and found him competent but not exceptional. Blackmun was called to Washington and met with Nixon by the Rose Garden window. “So I went over and we looked out and he asked a couple of questions, among which—I’ll never forget this—he said, ‘What kind of a woman is Mrs. Blackmun?’ And I said, ‘What do you mean?’ He said, ‘She will be wooed by the Georgetown crowd. Can she withstand that kind of wooing?’ I said I thought she could.”21
Blackmun and others sneered at Nixon for asking questions about his wife. Yet Nixon was quite insightful about how conservatives are continually seduced by the liberal establishment once they move inside the Beltway. They “grow” or “evolve” in office, meaning they become receptive to the liberal elitism of the establishment. (Nixon was soon able to put two more justices on the Court after Blackmun: William Rehnquist and Democrat Lewis Powell.)
During his first full term on the Court, Blackmun voted with Burger 89 percent of the time.22 Blackmun and Burger, who had been close friends in childhood, were called the Minnesota Twins. Blackmun resented the nickname, believing it unfairly implied he was dominated by Burger. Soon after he was on the Court, Burger assigned Blackmun to write the opinion in Roe. It was a major opportunity for Blackmun to prove his intellectual heft and display his constitutional prowess.
According to Bob Woodward’s book The Brethren, Blackmun suffered from a profound sense of insecurity:
From his first day at the Court, Blackmun had felt unworthy, unqualified, unable to perform up to standard. He felt he could equal the Chief and [Thurgood] Marshall, but not the others. He became increasingly withdrawn and professorial. He did not enjoy charting new paths for the law. He was still learning. The issues were too grave, the information too sparse. Each new answer was barely answered, even tentatively, when two more questions appeared on the horizon. Blackmun knew that his colleagues were concerned about what they perceived as his indecisiveness.23
Blackmun also brought enormous respect for doctors to the Court from his many years as counsel for the Mayo Clinic. He saw abortion laws as state meddling with a doctor’s professional judgment.24
In Roe, Blackmun plunged himself into the history of abortion and even returned to the libraries of the Mayo Clinic to research the medical opinion. Blackmun had other influences working on him—most notably his wife. Nixon had been quite prescient about the effect of Blackmun’s wife on his judicial role. While Blackmun was dithering over the opinion, Dorothy Blackmun told one of his pro–abortion rights clerks “that she was doing everything she could to encourage her husband in that direction. ‘You and I are working on the same thing,’ she said. ‘Me at home and you at work.’”25 Blackmun later claimed that she (and his three daughters) never tried to influence his decision.26
Other justices were also predisposed to dismantle the nation’s abortion laws, including another Nixon appointee, Lewis Powell. As Bob Woodward noted: “Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Powell felt he would just have to vote his ‘gut.’…When he returned to Washington, he took one of his law clerks to lunch…. The abortion laws, Powell confided, were ‘atrocious.’ His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote.”27
Powell’s vote, in other words, was not dictated by a serious effort to interpret the Constitution. Instead, he made a policy decision and then set out to justify it.
Justice Potter Stewart was also in favor of striking down abortion laws. Although he had some misgivings, Stewart thought abortion reform was necessary for various policy reasons.
As Stewart saw it, abortion was becoming one reasonable solution to population control. Poor people, in particular, were consistently victims of archaic and artificially complicated laws….
Still, these were issues of the very sort that made Stewart uncomfortable. Precisely because of their political nature, the Court should avoid them. But the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court’s being involved in this kind of controversy, this was perhaps an instance where it had to be involved.28
Blackmun acknowledged some of the policy issues at stake in the abortion debate, like overpopulation, in the introduction of his opinion:
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 to color one’s thinking and conclusions on abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.29
Nice speech, but it had nothing to do with a constitutional analysis of Roe. From this inauspicious beginning, Blackmun began a comprehensive, multi-page review of the history of abortion from the beginning of time to the present day. He led with the attitudes of the Persian Empire, the ancient Greeks, and the ancient Romans and tried to divine the real meaning behind the Hippocratic Oath. He moved on to the old common law of England, and examined Christian theology and the works of Catholic theologian Thomas Aquinas. From Europe, he proceeded to the history of abortion law in the individual states. Not stopping there, he outlined the positions of the American Medical Association since the 1800s, as well as the position of the American Public Health Association and the American Bar Association as expressed in the ABA House of Delegates. Once the history lesson was completed, Blackmun sought to refute the various policy reasons given for America’s abortion laws.
Finally, Blackmun focused on his legal rationale in Roe. He began with a review of the right to privacy, writing, in part:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however…the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment…in the Fourth and Fifth Amendments…in the penumbras of the Bill of Rights…in the Ninth Amendment…or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment…. These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty”…are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage…procreation…contraception…family relationships…and child rearing and education…. 30
Blackmun felt that the right of privacy, wherever it comes from, includes the right to abortion. Do not look any further for legal argument amidst the voluminous opinion, because it does not exist. Perhaps the extensive historical analysis was included to compensate for the lack of legal analysis.
But Blackmun went further, and the Court followed. Not satisfied to strike down the Texas law, Blackmun began to write what seemed to be a new federal statute. According to Blackmun’s opinion, a woman’s right to abortion could only be abridged by a compelling state interest. In effect, Blackmun argued that there was an inverse relationship between a woman’s interest and the state’s interest that ranged across a spectrum from conception to birth. Therefore, the state’s interest at conception was minimal but increased as the pregnancy progressed, reaching its peak at the end of the pregnancy. A woman’s interest, paramount at conception, began to give some ground to the state’s interest in protecting the fetus as it matured toward being able to live outside of the mother. But Blackmun specifically declared that the unborn child was not a “person” under the Fourteenth Amendment, and thus had no equal protection rights.
Blackmun wrote that what really mattered was the unborn baby’s viability outside the womb. A fetus capable of life outside the womb, Blackmun believed, was more deserving of protection than one in its earliest stages of development. He also shot down Texas’s attempt to define life as beginning at conception, which “by adopting one theory of life,”31 would have then allowed Texas to extend its interest to the earliest stage of pregnancy. Blackmun wrote, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”32
Blackmun gave deference to medicine, philosophy, and theology (from his own perspective), but not to the Constitution, the people, the states, or the other branches of the federal government. In truth, Blackmun did establish, at least for constitutional purposes, when life begins by recognizing abortion as a constitutionally protected right to privacy. He did precisely what he lectured should not be done.
Blackmun constructed a hyper-technical trimester analysis to break down the rights of the mother and the state. In the first trimester, the decision to abort must be left to the woman’s physician. In the second trimester, the state may regulate abortion procedures to promote its interest in the mother’s health. In the third trimester, in the interest of protecting the unborn child, the state can regulate and even ban abortion, except where, by medical judgment, it is necessary to preserve the mother’s life or health.
The trade-offs inherent in the trimester system smack of the bargaining and dealing that legislators engage in to pass a highway construction bill. It is no wonder that activists justify Roe on policy and not legal grounds. But since this policy decision was disguised as a constitutional pronouncement by the Court, American law has been prevented from keeping up with rapid improvements in medical technology. Repeatedly, the Court has shown no willingness to recognize an earlier concept of viability to limit the reach of the abortion right.
Of course, from an analytical and logical point of view, a ban on abortion could have been upheld regardless of whether a fetus is protected by the Fourteenth Amendment as a “person.” Americans are fined or imprisoned for destroying endangered wildlife or even wetlands, and these laws have been ruled constitutional.
In any event, Blackmun’s stated deference to medicine, in which a doctor can authorize or perform an abortion for the health of the mother, belies his third-trimester framework. This point was driven home in 2000, in Stenbergv. Carhart, when the Supreme Court struck down a Nebraska law prohibiting partial-birth abortion.33 Justice Stephen Breyer, in writing the majority opinion, stated, “We conclude [that the law banning partial-birth abortions violates the Constitution] for two independent reasons. First, the law lacks any exception ‘for the preservation of the…health of the mother.’ Second, it ‘imposes undue burden on a woman’s ability’ to choose.”34 Consequently, the Supreme Court upheld a particularly vicious method of performing an abortion.
A Court historian believes Blackmun’s leftward drift from moderate to liberal jurist was a result of Roe. “It was not just the criticism and the hate mail he received, but also thank-you letters he received from women. Over time, he came to think he had done a great thing for women, and it made him much more attuned to the cause of protecting individual rights.”35 Another way to describe Blackmun’s shift is less charitable: He was moved and thereby seduced by public opinion in much the same way a politician is. There is evidence that Blackmun was particularly vulnerable to this type of lobbying. Chai Feldblum clerked for Blackmun during the term after he had issued his dissent in Bowers v. Hardwick (1986), in which he argued that the right to privacy protected homosexual sodomy. His office was once again flooded with letters from across the country.
“I believe he was radicalized by the response to the case,” says Feldblum, now a professor of disability law at the Georgetown University Law Center in Washington, D.C. “The hate mail told him that prejudice existed and sodomy laws were part of the problem. The fan mail came from gay people who said things like, ‘I am gay, and your dissent meant so much to me.’ I’ll never forget how much that meant to him.”36
There is something truly absurd and, frankly, repugnant, about a judge being swayed by fan mail.
After Roe, Blackmun saw his role as championing a cause, not interpreting the Constitution. At the end of his career, he
dramatically announced, without a trace of irony, that he was morally opposed to the death penalty. “From this day forward, I no longer shall tinker with the machinery of death,”37 said the author of Roe, as if his ruling in Roe did not constitute a tinkering with the machinery of death.38 Blackmun continued to issue self-congratulatory, pompous, and maudlin statements about Roe’s importance and vulnerability. “If it goes down the drain, I’d still like to regard Roe v. Wade as a landmark in the progress of the emancipation of women,”39 he said. In 1992, with a presidential election looming, Blackmun made a dramatic call—within a Supreme Court opinion—to the supporters of abortion. He piously intoned, “And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light!”40
Yet Roe has survived, despite attempts to overturn it. Blackmun’s personal papers reveal that Justice Anthony Kennedy made a last-moment switch and abandoned one such attempt in Planned Parenthood v. Casey,41 decided in 1992, thereby providing the crucial fifth vote to uphold Roe.42
There are some interesting parallels between Kennedy and Blackmun. Both were their presidents’ third choice for the Supreme Court and were considered competent but not exceptional when vetted by the White House. And, like Blackmun, Kennedy is going through a leftward evolution on the Court.
Kennedy, Justice Sandra Day O’Connor, and Justice David Souter issued jointly the majority opinion of the Court in Casey—a very unusual move. The Court allowed certain restrictions on abortion, but left the essential holding in Roe intact.43
The three justices began by stating the Court’s obligations: “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.”44 (Emphasis added.)
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