WASHINGTON—As tributes were paid to retired Supreme Court Justice Harry A. Blackmun on his death, pro-lifers said their great regret is that he will be remembered mostly for a terrible legacy.
Blackmun, who died at age 90 of complications from hip surgery, was the author of the court's 1973 Roe v. Wade decision which made abortion legal and set off cataclysmic social and political changes that shake the nation to this day.
“It's always a tragedy when a person of his prominence dies,” said Bill Donohue, president of the Catholic League for Religious and Civil Rights. “But when one looks at his record, the legacy that he left us is one which certainly does not endear himself to the one who respects the innocence of human life.”
“We are praying for his soul,” was the only public comment from many pro-lifers, including American Life League's spokes-person, at news of Blackmun's death March 4.
The retired justice took his seat on the court in June 1970. Few people would have guessed then that history would most remember him for a decision that has since resulted in the death of tens of millions of unborn children.
The opinion, which Blackmun worked on for more than a year, noted that the Constitution did not explicitly mention a right to privacy. Nonetheless, Blackmun said, the court in a variety of contexts “has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”
The court then found constitutional protection for “a right of personal privacy” that is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”
According to a New York Times report, he told a group of law students in 1986, “If it [Roe v. Wade] goes down the drain, I'd still like to regard Roe v. Wade as a landmark in the progress of the emancipation of women.”
While Blackmun saw the court's decision as helping women, Harvard law professor Mary Ann Glendon described Roe v. Wade as a “decision more concerned about protecting doctors than women.” Glendon is an expert on family law.
She said that Blackmun, a lawyer for the Mayo Clinic in Rochester, Minn., before being appointed to the Supreme Court, had worked on his opinion in the clinic library in the summer of 1972.
Of the reasoning he used, Glendon contended, “Much of it was prompted by fear of medical professionals.”
She continued, “Once he had written his opinion, he could have rethought it or stepped back from the brink of the abyss, but instead, like any of us who make a mistake, he began to dig in, rationalizing, and became more extreme and stubborn about defending his mistake.”
Asked for comment, the Mayo Clinic did not return calls.
Donohue described Blackmun as a man who went to the high court as a “strict constructionist,” someone who took a more literalist interpretation of the Constitution, but he left as a person who “basically tried to rewrite the Constitution.”
“There was no authority for the court to make that [Roe] decision,” Donohue asserted. “That was an example of judicial imperialism and this is a man who also makes utilitarian decisions instead of constitutional decisions.
“He substituted his own politics for legal reasoning and to that extent, his legacy, I believe is a sorry one.”
In remarks posted Jan. 17 on the Vatican Web site, Cardinal John O'Connor of New York summed up the consequences of Roe v. Wade.
“The horror of abortion itself provides more than enough ‘drama.’ In the United States today, annually since the infamous Roe v. Wade Supreme Court ruling of 1973, approximately 1,500,000 unborn babies are destroyed. The estimate since 1973 is a total of 30,000,000 babies. The overall destructiveness of the single action of abortion defies calculation, in terms of the lives of countless numbers of mothers, fathers, siblings, abortionists and assistants. Only the baby dies. The mother and others often live or try to live with souls churning with guilt, minds in turmoil, normal patterns of behavior turned upside down.”
Glendon pointed out that, in terms of its legal argument, Roe had not stood the test of time: “The fact is that the Supreme Court has repudiated much of Roe v. Wade,” not by overturning its effects but because it has “understood that it was faulty” in its expansive understanding of the privacy right.
Joan Andrews Bell, who has been arrested more than 200 times for civil disobedience at abortion clinics, said of Blackmun, “I have been praying for him for a long time. He saw the arguments against abortion but” rejected them. She said the Supreme Court brushed aside medical testimony about when human life begins.
Chris Andrews Bell, director of Good Counsel Homes, and Joan's husband, added that it is “very sad that [Blackmun] will be remembered as the author of the most brutal decision in the history of mankind, giving rise to the downward slope of the culture of death.”
“Another soul to pray for,” was the reaction of Jason Kenney, chairman of the Canadian Parliamentary Pro-Life Caucus. “He was a living symbol of the principle shot fired in the culture war.”
“His decision in Roe v. Wade became a reference point for courts in many other developed countries which took its cue in legalizing abortion on demand,” added Kenney, a Reform Party member who represents part of Calgary. “Certainly his decision was used as a cue by the Canadian Supreme Court in creating the wide-open abortion regime” here.
In his 1973 written opinion, Blackmun was forthright about his reasons for wanting abortions to increase. He wrote that “there is the distress for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”
Before his retirement, Blackmun reversed his long-held support for the death penalty, saying he would oppose it in all cases because he felt it was being applied unfairly. In several death penalty appeals reviewed by the court during his final term, he voted to overturn sentences, but was overruled each time by a majority of the justices.
Geraldine Hemmings is an associate editor of the Register.