ROE'S EFFECTS ON BLACKMUN'S VIEW OF WOMEN'S RIGHTS
Blackmun on the first Court to have two female justices.
Justice Harry Blackmun’s most famous and best-documented action on the Court is his authorship of the majority decision in Roe v. Wade (1973). It was originally intended to defend the a doctor’s autonomy to make decisions for his or her own patient. Today, it is commonly interpreted as ensuring the right of a woman to abortion in the first trimester. This is not a mistake; rather, it is a result of Blackmun’s own evolution in his interpretation of women’s rights.
The long and complicated history of the Roe v. Wade case will not be discussed here because it is documented innumerable times. Indeed, the evolution of abortion law is similarly well-published and continuously evolving, so here we will find only what became important in Blackmun’s interpretation of women’s rights.
Blackmun’s decision framed Roe v. Wade in terms of doctors’ rights, not only because doctors were the ones targeted with prosecution in cases of abortion. Blackmun, after all, had been the general counsel for the Mayo Clinic and was used to representing doctors and their decisions. After Chief Justice Warren Burger assigned him the opinion, Blackmun researched the medical and social backgrounds of abortion extensively at Mayo’s library, and emerged with a 50-page opinion so sound that it commanded a 7-2 majority. This fact would seem to be forgotten by many hateful citizens who targeted Blackmun specifically for the opinion, which allowed a doctor and his patient full discretion within the first trimester to determine a proper course.
Note anticipating the release of the Roe opinion.
As Roe was challenged more and more, Blackmun became very defensive, and by 1986, in Thornburgh v. American College of Obstetricians and Gynecologists, Blackmun phrased the issues as “a woman’s decision” and a “woman’s right to make that choice freely.” In a later case that ruled some Missouri abortion restrictions constitutional but stopped just short of overturning Roe, Blackmun used even stronger language: “For today, the women of this Nation still retain the liberty to control their destinies. Bur the signs are evident and very ominous, and a chill wind blows” (194).
His newfound ideals of women’s rights found other outlets. In Reed v. Reed (1971) he found that a law giving men automatic preference in administering unwilled estates was unconstitutional, and in a private memo wrote, “women have been held down in the past in almost every area” (210). In Frontiero v. Richardson (1973), dealing with military benefits being granted differently to men and women, he wrote “this must be stricken down” (212), but stopped short of supporting Brennan’s call for strict scrutiny in sex discrimination cases, relying instead on the rational basis test as an act of judicial restraint (212). His decision was partly motivated by the concurrent progress of the Equal Rights Amendment in state legislatures and his belief that it was a legislative, not judicial, matter.
His newfound ideals of women’s rights found other outlets. In Reed v. Reed (1971) he found that a law giving men automatic preference in administering unwilled estates was unconstitutional, and in a private memo wrote, “women have been held down in the past in almost every area” (210). In Frontiero v. Richardson (1973), dealing with military benefits being granted differently to men and women, he wrote “this must be stricken down” (212), but stopped short of supporting Brennan’s call for strict scrutiny in sex discrimination cases, relying instead on the rational basis test as an act of judicial restraint (212). His decision was partly motivated by the concurrent progress of the Equal Rights Amendment in state legislatures and his belief that it was a legislative, not judicial, matter.
However, it was his defense of Roe that led him to fully embrace the language and principles of feminism. When Roe was barely saved in Webster v. Reproductive Health Services (1989), Blackmun wrote, “I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided." And in Planned Parenthood v. Casey (1992), which also narrowly saved Roe, Blackmun concurred in overtly feminist language: if restricting access to abortion, the State ignores “constitutional guarantees of gender equality” and thus “conscripts women’s bodies into its service,” so that “women can simply be forced to accept the ‘natural’ status and incidents of motherhood." Later in the opinion, he surprisingly cited a decision, Mississippi University for Women v. Hogan (1982), in which Blackmun had dissented from its radical feminist reasoning. Blackmun was now unequivocally on board.
Blackmun’s newfound belief in gender equality may have been spurred by his deeply personal belief in abortion rights, but was not limited to it. He applied it to a wide variety of cases but it is most clearly encapsulated in J.E.B. v. Alabama (1994), a case of sex discrimination in jury selection. He wrote that “gender, like race, is an unconstitutional proxy for juror competence and impartiality." He outlined the history of the Court’s rulings in sex discrimination cases, and cited four that were argued by one Ruth Bader Ginsburg, now one of two women on the highest court in the land.
