Harry A. Blackmun: Strong Justice in a Chill Wind

Blackmun, appointed to the court by President Richard Nixon in 1970, is remembered as a champion of women's rights and author of one of the best-known and most controversial decisions ever handed down by the court — Roe v. Wade — which legalized abortion nationwide.

In a wildly unlikely scenario, Blackmun served with Chief Justice Warren Burger, a fellow Minnesotan with whom he had been friends since kindergarten. Court watchers, and Burger, expected Blackmun to be solidly conservative, and at first he was. But in a string of cases he revealed a socially liberal bent that today would place him in the far reaches of the left. In addition to Roe and the reproductive rights cases after it, he had a hand in the 1971 "Pentagon Papers" case, the 1974 U.S. v. Nixon Watergate-related case, and cases involving the death penalty, which he so came to oppose that in a 1993 dissent he wrote, "From this day forward, I no longer shall tinker with the machinery of death."

Roe v. Wade and Doe v. Bolton, the two landmark abortion rights cases, were heard by the court in December 1971. Blackmun says he was never quite sure why Burger assigned the cases to him. In preparing for them, he polled his family, and one of his daughters recounts a dinnertime anecdote. After his wife and two older daughters offered their conservative to middle-of-the-road opinions on abortion, his youngest daughter proclaimed her firebrand, shock-the-old-man view, and he "put down his fork mid-bite ... [and said] "'I think I'll go lie down.'"

On January 22, 1973, Blackmun's Roe opinion was announced for the 7-2 majority. The ruling not only legalized abortion nationwide and affirmed a fundamental right to privacy, but also vindicated "the right of the physician to administer medical treatment according to his professional judgment. ..." Writes Greenhouse: "After all, it was not the woman but the doctor who faced criminal liability under every existing law."

A day after the ruling was announced, Blackmun got his first taste of what this decision would cost him. At a speaking engagement in his law clerk's hometown of Cedar Rapids, IA, local police were dispatched to protect him from anti-abortion protesters.

Several cases in 1977 addressed the fact that poor women could not receive state aid for abortions. "For the individual woman concerned, indigent and financially helpless ... the result is punitive and tragic," Blackmun wrote."... Implicit in the Court's holdings is the condescension that she may go elsewhere for her abortion. I find that disingenuous and alarming, almost reminiscent of 'Let them eat cake.'"

In 1986, in Thornburgh v. American College of Obstetricians and Gynecologists, Burger, one of the original seven to affirm Roe, changed sides and voted with the minority to curtail abortion rights. In July 1989, with Roe narrowly surviving Webster v. Reproductive Health Services, Blackmun famously wrote, "For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows." In 1992, Roe was nearly overturned by Planned Parenthood of Southeastern Pennsylvania v. Casey. Blackmun, who was 83 at the time, wrote, "By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service ...."

Blackmun retired from the bench on June 30, 1994. A year later, Gloria Steinem wrote, "The truth is: You have saved more American women's lives than anyone in our nation's history." In 1995 — four years before Blackmun's death — a former law clerk asked him if writing Roe v. Wade was a piece of bad luck or good luck. "I think one grows in controversy," Blackmun answered.