Via Ann Althouse, an interesting review in the Times of Linda Greenhouse’s book Becoming Justice Blackmun. The book focuses on the relationship between Justice Blackmun and Chief Justice Warren Burger, a friendship that wouldn’t seem plausible in fiction:
Justice Blackmun’s 60-year relationship with Chief Justice Burger, as Ms. Greenhouse notes, “would seem unlikely if depicted in a novel.” The two met in kindergarten in St. Paul, remained friends until adulthood and were appointed to the Supreme Court within a year of each other.
What really caught my interest, however, was the discussion of Roe v Wade.
In her careful account of the decision, Ms. Greenhouse shows that after Justice Blackmun resolved to strike down restrictions on abortion in 1972, he spent the rest of his career in search of constitutional arguments that might justify the decision. His colleagues found the thin legal analysis in his original draft entirely inadequate. Because of his experience as former counsel to the Mayo Clinic, Justice Blackmun’s focus was always on the rights of doctors rather than the rights of women. But he never produced a convincing constitutional defense of either rationale.
Justice Blackmun was no feminist, and he strenuously resisted claims involving women’s rights for most of his tenure on the court. He complained when the court voted before Sandra Day O’Connor’s arrival in 1980 to omit the traditional reference to “Mr. Justice.” He was impatient with the briefs that Ruth Bader Ginsburg filed as an advocate for the American Civil Liberties Union on behalf of women’s rights, calling one of them “mildly offensive and arrogant,” and dismissing her as “too smart.” After Justice Ginsburg was appointed to the court in 1993, Justice Blackmun continued to resent the fact that she had criticized Roe as too broad.
By the 1990’s, however, constitutional scholars came to agree with Justice Ginsburg that women’s equality was a more plausible grounding for the right to choose than Justice Blackmun’s focus on medical privacy. On the day he resigned in April 1994, Justice Blackmun belatedly called Roe v. Wade “a step that had to be taken as we go down the road toward the full emancipation of women.” As Ms. Greenhouse notes, “On Harry Blackmun’s improbable journey, becoming a feminist icon was perhaps the most improbable destination of all.”
Interesting article
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I read that article too and found it really interesting. I have to agree with her on the Roe decision insofar as it focuses on the rights of doctors, though of course that isn’t exclusive–he does discuss women’s rights to make these decisions, he just emphasizes that they’re making the decision together with a doctor, which I think he found reassuring. The opinion is also incredibly grounded in medical detail about trimesters, etc., also courtesy of the Mayo Clinic. His opinion in Casey v. Planned Parenthood is far stronger–he writes a concurrence about women’s rights on an opinion that’s mostly about upholding precedent.
I’m anything but a constitutional scholar, but at first glance, medical privacy seems to me to be a more compelling case for abortion rights than women’s equality. Pregnancy is one of the bona fide differences between men and women. A law that said, “we prohibit everyone from having abortions, men or women, though of course in practice only women will be affected, since men can’t have abortions (or pregnancy) regardless of the law” would not be, de jure, discriminatory against women. De facto, it would discriminate, but that’s biology, no law.
I think that, on moral and pragmatic grounds, abortion should not be prohibited (though I used to feel differently). However, I think that equality between men and women in an area where that equality is biologically impossible is a spurious case to make against prohibition.
In somewhat the same way, I also think that banning condoms, vasectomies, tubal ligations, diaphragms, and birth control pills in one big omnibus law is a bad idea, but I don’t think a case can be made that it’s discriminatory because it prohibits women from taking the pill, but it doesn’t prevent men from taking a hypothetical but as yet non-existent male pill. (somehow, the male pill has been discussed on Pandagon a lot lately)
Then again, I’m not a constitutional scholar, so I don’t have the intellectual resources for a deeper analysis.
I think that the constitutional right should lie in a right to choose what you do with your body. That being the case, I find the focus on privacy kind of bizarre. That’s what Roe is based on, of course–but that’s partly because the best precedents Blackmun had to draw on in writing the decision were about privacy (starting with Griswold v. Connecticut, which asserted that married couples couldn’t be prohibited from using birth control because it would infringe their marital privacy; that decision paints a completely hysterical picture of the policy poking into the sacred privacy of the marital bedroom). I think the language of cases after Roe focused a little more on women’s rights to self-determination, which I think is a closer fit to our intuitive perceptions of why abortion is important than privacy ever was.
On equality, though–I think there’s the kind of formal equality you’re talking about, which just looks to make sure that everyone is given the same facial rights–and then there’s a view that looks to whether laws are actually perpetuating subordination of a particular group, which might be more likely to lead to real equality for women. That’s not, however, the view that our current Supreme Court is likely to take.