Papers Reveal Blackmun's Fear for His Legacy

It's an odd statement to find in a U.S. Supreme Court decision, but there it is anyway.

“I fear for the darkness as four justices anxiously await the single vote necessary to extinguish the light,” Justice Harry Blackmun wrote in Planned Parenthood v. Casey, the 1992 Supreme Court case.

“I am 83 years old,” he wrote. “I cannot remain on this court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today.”

By the time he wrote that, Blackmun, the father of Roe v. Wade, was a well-established icon in the pro-abortion movement.

With the release in early March of the previously closed papers of former Justice Blackmun, we are reminded exactly where the penumbras and emanations that established a legal right to abortion in the United States in the 1973 Supreme Court ruling Roe v. Wade came from: the heart of an activist.

Blackmun had stipulated that his archived papers be released exactly five years after his death in March 1999. The five years are now fulfilled.

In an interview with a feminist web-site, Sally Blackmun, the late justice's daughter, said when the opinion in Roe was assigned to Blackmun, he canvassed his family. “Roe was a case that Dad struggled with,“ she said. ”It was a case that he asked his daughters' and wife's opinion about.”

But by then, he probably knew full well what the women in his life thought about the case — and what he did.

In 1966, Sally Blackmun says, as a 19-year-old sophomore at Skidmore College, she got pregnant. As she told womenenews.org: “‘It was one of those things I was not at all proud of, that I was not at all pleased with myself about. It was a big disappointment to my parents,’ she said in an interview. ‘I did what so many young women of my era did. I quit college and married my 20-year-old college boyfriend. It was a decision that I might have made differently had Roe v. Wade been around,’ she said. It was, she said, one of the most difficult periods of her life.”

Sally Blackmun wound up suffering a miscarriage, “but her life had already changed,” womennews.org reported. “Her student career at Skidmore was cut short and she moved to join her new spouse in another state. The marriage lasted six years and it took her nearly as long to complete her college requirements. Even that might not have occurred if she had carried to term, she said.”

That background is important to understanding Blackmun and the trajectory of abortion in the United States as well. Among other things, the new papers reveal more details about the famous switch. Blackmun was lobbied by Justices Sandra Day O'Connor and David Souter, both (like Justice Anthony Kennedy) Republican-president appointees. In 1992 they all voted with Blackmun to preserve Roe.

As Blackmun's archives reveal (Blackmun kept the note) the worry that Roe would go down ended when Blackmun received a note from Kennedy: “Dear Harry … I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.”

The Blackmun papers, says Douglas Johnson of the National Right to Life Committee, “further flesh out the story of how seven justices took it upon themselves to operate as a super-legislature, effectively amending the Constitution in order to achieve the policy result they desired, which was legalized abortion on demand. They negotiated over the scope of the right that they were inventing and then argued over what language in the Constitution they could use to justify their policy. The memoranda between justices that were released with the [Justice Thurgood] Marshall papers read like memos among the staffers on a congressional committee, drafting a statute.”

As one court writer put it, the 5-4 ruling in Casey “reveals more about Justice Kennedy's soul-searching than about any immutable constitutional truth.”

His journal notes that Blackmun wrote, after meeting with Kennedy, “Roe sound,” thanks to fine legislative work. Too bad he served in the wrong branch.

Kathryn Jean Lopez is the editor of National Review Online.