A Satchel of Embarrassments: Harry Blackmun and Roe v. Wade

Harry Blackmun

Justice Harry Blackmun had, in his service on the Court, a well known (and not necessarily loved) penchant to engage in extended explications of the law, when what he was actually called upon to do was to state the holding of the Court in a case, and provide, cogently, the reasoning therefore. He was, in a word, prolix.

Perhaps it is coincidental, but Blackmun's opinion for the Court in Roe v. Wade opens with language strikingly similar in tone and florid appeal to Kennedy's opening in Obergefell. Blackmun wrote:

"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 about abortion."

There is more to the shamefulness of Blackmun's opinion than the decidedly non-constitutional character of that language.

The Constitution, ratified by the States, provided the framework of our federal system of government. By that, I mean that it established the three branch federal, or general, government, and it confirmed the two-level nature of our Nation, as a collection of fifty sovereign States, each of which ceded small aspects of their independence to the general government. The framework left the question of local regulation of health, safety and welfare to the States. The States retained entirely the power to enact criminal laws and enforce them.

After the Civil War, our Nation added three Reconstruction Amendments to the Constitution. Those Amendments barred slavery, guaranteed an equal right to vote regardless of race, and granted US and State citizenship to former slaves, indeed to all persons born or naturalized in the US. The Fourteenth Amendment also guaranteed to all persons the right to due process and equal treatment. Nothing in the Reconstruction Amendments stripped the States of their power over local regulation of health, safety and welfare, or diminished their power to make and enforce criminal laws.

Beginning in the early part of the 20th Century, however, the Supreme Court began to employ the notion that the "due process" required by the Fourteenth Amendment was an expansive concept. Under that expansive view, while "due process" certainly included the right to appropriate proceedings (indictment, trial, representation by lawyer, jury), the Court began to hold that "due process" afforded a set of particular and fundamental rights not related to process.

The substantive due process doctrine, as it came to be called, tended to form the basis of attacks on the power of States to enact a broad variety of laws. Although he appears below, with his own "head in a bag" entry, Justice Oliver Wendell Holmes, Jr., explained the problem with the idea of substantive due process:

I have ... more than anxiety ... at the ever increasing scope given to the Fourteenth Amendment in cutting down ... constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the ... decisions to which I have referred. [T]he words due process of law ... have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.

Baldwin v. Missouri (dissenting opinion). Putting Holmes plainly, he was alarmed at the rapid expansion of the Supreme Court's power to sit in judgment over the validity of State laws affecting economic and moral questions. In a series of cases employing substantive due process, particularly with reference to economic regulation, the Court had struck down laws:

1. prohibiting foreign corporations from doing business in a state, 
2. limiting weekly working hours, 
3. laws prohibiting railroad companies from demanding that a worker not join a labor union as a condition for employment, 
4. preventing privately owned employment agencies from assessing fees for their services, 
5. restricting child labor, 
6. taxing interstate commerce of employers hiring children, 
7. imposing a minimum wage for women and children in the District of Columbia, 
8. regulating the coal industry

Now, turn to Blackmun's opinion in Roe v. Wade and you see the full flower of Holmes' feared judicial expansionism. By the time Roe is at the Supreme Court, the era of striking down economic regulations under substantive due process had ended. Yet, Blackmun found that in the "penumbra" of fundamental constitutional rights there was an interest in liberty, a right, of women to choose to have an abortion. His doctrinal basis for striking down the abortion laws of nearly every State in the Union was that very same substantive due process, a doctrine repudiated by the Court in application to economic rights, but preserved by Blackmun for the right to abort.

Adding to Blackmun's shame, the opinion in Roe represents an epic failure to correctly account for the history of abortion regulation in American legal history. The essence of his error was to portray existing and previous restrictions solely as imposed for the sake of protecting women's lives and health. His version of history then discounts that the States regulated or restricted abortion for the protection of their separate, legitimate interest in the lives of children prior to birth. A detailed account of his historical errors is available here, here, here, and here.

Blackmun cited to, and relied on, "legal history" presented in an amicus brief and in Jane Roe's brief. That "legal history," derived from two law review articles written by New York University Professor Cyril Means, claimed that at the time that America declared its independence, and at the time of the ratification of the Constitution, women enjoyed a liberty right to abort a pregnancy. When Sarah Weddington argued Roe v. Wade, the legal team on which she served knew that there were problems with the version of history offered by Professor Means. A Yale law student on the team circulated a memo containing the following passage:

Where the important thing to do is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work out, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until the courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.

"Fudge it as necessary." And fudge it Blackmun did. Perhaps he should have given greater care to the source of his history. Cyril Means was general counsel for an abortion legalization advocacy group, the National Association for the Repeal of Abortion Laws. Hardly a disinterested observed of history, Means manufactured history so that Blackmun could make it.