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Was Justice Blackmun Correct, Or Is the Decision Still Troubling?


Thursday, Jan. 23, 2003

Before his retirement from the Supreme Court in 1994, whenever Justice Harry Blackmun interviewed prospective law clerks, he would engage each of them in a basically identical colloquy about Roe v. Wade, the famous (or infamous) abortion rights opinion he authored 30 years ago this week.

The Roe moment would usually come roughly 30 minutes into the 45 minute interview. In his deep, world-weary voice, Justice Blackmun would turn to the applicant and inquire: "You do know that I once wrote a rather controversial opinion, Roe v. Wade?"

I'm sure I wasn't the only applicant to suppress the urge to respond, "No kidding." What law student didn't know this? Perhaps Blackmun was simply trying to be kind; perhaps he was indulging in a bit of humor based on the truth, clear even then, that it would be Roe he would for which he would be remembered; it would dwarf anything else he'd ever written, defining his legacy.

Whatever the intent behind his first question, it was mere prologue to his true agenda. "How would you feel about working for the justice who wrote that decision?" he quickly followed up.

I don't remember anymore exactly what I answered Justice Blackmun when he asked me the Roe question nearly 15 years ago. I do remember a feeling of inner conflict that has never disappeared.

What Should We Make of A Good Decision Based on Bad Law?

As I have written in this space on several occasions (including in a recent column), I believe that Roe is a jurisprudential nightmare. Extending the unenumerated constitutional right to privacy to cover a woman's choice to have an abortion, required an analytical leap with little support in history or precedent.

Compounding this, Justice Blackmun's opinion provides virtually no guidance about the constitutional basis for a decision that struck down the abortion prohibitions of a majority of states. It's a particular problem for the Supreme Court's legitimacy when the Court invalidates legislation nationwide without giving a strong account of why it is doing so.

At the same time, though, Roe surely saved the lives of countless women who, as had happened for generations, would otherwise have obtained dangerous back-alley abortions. Moreover, Roe has served as a powerful practical and symbolic agent for advancing the social and political equality of women. In this sense, it has been the gender counterpart to Brown v. Board of Education, the watershed case in the modern history of race relations.

How does one tote up this balance sheet?

Roe's Influence: The Two Sides of the Balance

On one side of the balance, the jurisprudential problem with Roe extends far beyond the decision itself. Whether described as legislating from the bench or pure result-oriented judging, Roe has become the poster-child for liberal jurisprudence run amok..

In that role, it has cast a pall over far more defensible progressive opinions of the Warren Court, and undermined the vast achievements of the Court in that era. Roe also may have spawned a kind of "what's good for the goose is good for the gander" backlash of unprincipled, result-oriented decisions by judicial conservatives. (Bush v. Gore anyone?)

On the other side, Roe (together with its precursor decisions, such as Griswold v. Connecticut, announcing a constitutional right to use contraception) served as nothing less than an emancipation proclamation for women. This line of decisions gave women the same freedom to engage in sex that men have always enjoyed; after all, if rights to contraception and abortion do not exist, it is women, not men, who will predictably suffer the brunt of the consequences.

Roe and its precursors also gave woman a theretofore unrecognized power to control their personal and economic destinies. And it has served as an important catalyst for the emergence of women as a powerful force in electoral politics.

A World Without Roe: Probably Still Deeply Divided on Abortion

Complicating the analysis is the fact that without Roe, many states would still allow abortion. And that has a couple of important consequences.

First, it means that without Roe, America would probably still remain divided. After all, the same moral opprobrium against, and passionate defense of, the right to abortion would exist whether the right was declared (as it was) by the Supreme Court or, instead, established by the legislature.

Second, it means that results-oriented conservatism may have been an inevitability. Granted, Roe gave its advent a tit-for-tat feel and justification that otherwise would have been absent. But in the end, even if Roe were not a litmus test, state abortion statutes still would be.

The debate in short, would have gone on no matter how persuasively or unpersuasively Roe was reasoned or, indeed, even if the decision had gone the other way. The truth is that, regrettably, in this context, the liberty and equality of women necessarily comes at the expense of prospective life. It is a brutal choice of values; different people make it differently; and that would have been true with or without Roe's result.

The Price of Roe, and Why Justice Blackmun Recognized and Accepted It

In 1989, when I was clerking for Justice Blackmun, we spent several long afternoons sitting in his office contemplating these matters. The case of Webster v. Reproductive Health Services was pending at the time. Like many cases that had come before it, Webster involved a challenge to a series of state abortion regulations (such as medical testing requirements and limitations on the use of public money or facilities for abortions) designed to make obtaining an abortion as difficult as possible. What made Webster potentially different was the arrival of Justice Anthony Kennedy at the Court (replacing the pro-Roe Justice Lewis Powell) - a change that many Court watchers thought (wrongly as it turned out) would provide a fifth vote to overturn Roe.

As far as I know, Blackmun also never second-guessed the legal basis for his original decision - though towards the end of his tenure he often tied the right to abortion to a woman's right to equality, as well as to privacy. In stressing this second justification - ground in the Constitution's Equal Protection jurisprudence - he might possibly have recognized some weakness in the justification he originally put forth in Roe.

I strongly suspect, but certainly don't know, that Blackmun's lack of reconsideration of Roe's reasoning did not come from Blackmun's blindness to the critiques leveled against Roe; he was too thoughtful and receptive not to be open to such critiques. Blackmun probably choose not to reconsider Roe's reasoning, then, simply because he believed so deeply in its result.

He may well have thought that such criticisms, given the social achievements of Roe, were unimportant in the scheme of things. What is the value of doctrinal purity compared to the freedoms Roe advanced?

To this day, I wrestle with that question, as every conscientious liberal legal commentator must. And I have never comfortable with what seemed to be Justice Blackmun's definitive answer. But 15 years after he posed the Roe question to me, I still don't have a definitive answer of my own.

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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