It has been 45 years since the U.S. Supreme Court in Roe v. Wade ruled 7-2, in a decision written by Justice Harry Blackmun, that the Constitution protected a woman’s decision to have an abortion. Abortion rights have remained a newsworthy issue ever since and have come to the fore once again with the resignation of Supreme Court Justice Anthony Kennedy and the conservative leanings of President Trump.
None of the recent news articles I’ve read go deeply into the Court’s deliberations in Roe. Rather, they focus on current potential replacements for Kennedy and those candidates’ beliefs in regard to birth control and its relationship to parent/physician determination and governmental oversight, as well as abortion’s cultural implications.
Discussion of Roe vs. Wade raises personal interest for me because my family and Justice Blackmun’s were friends when he was the chief attorney for the Mayo Clinic in Minnesota, before he was appointed to the Supreme Court. In that capacity he was viewed as extremely thoughtful, with his decisions always data driven. It is also apparent that his deep involvement in the medical aspects of the Roe case can be traced in good measure to knowledge gained from his time at the clinic, where he developed the opinion that the decision whether to have an abortion should be between a woman and her physician.
In her book, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, author Linda Greenhouse quotes him in his Roe draft as saying, “It is not for us of the judiciary, especially at this point in the development of man’s knowledge, to speculate or to specify when life begins.” Furthermore, he noted that the “state’s interest [in restricting abortion] grows stronger as the woman approaches term.”
From an article in the American Journal of Public Health, which article appeared two years before Roe, Justice Blackmun had copied a quote that the “risk from legal abortion in the first trimester is less than carrying pregnancy to term.” Based on results from a June 1972 Gallup Poll, Blackmun noted, “two out of three Americans think abortion should be a matter for decision between a woman and her physician,” and among college graduates the belief in the right to abortion had risen to 87 percent.
After leaving Mayo and being appointed to the Eighth Circuit Court of Appeals by President Eisenhower in 1959, Blackmun continued to believe that “the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” In 1970, President Nixon appointed him to the Supreme Court, on which he served until 1994.
From my point of view, Blackmun took an unusual stance in Roe, given his generally conservative nature. He was a lifelong friend of then-Chief Justice, and fellow Minnesotan, Warren Burger, and they both tended to follow a conservative line on most issues. Roe vs. Wade, however, brought Blackmun’s medical knowledge to the fore.
According to an article in the June 27 issue of The New York Times, the “abortion landscape” has changed from national to state-by-state over its 45-year tenure, due largely to additions to medical acts on both levels. The authors say that the Affordable Care Act, in overcoming repeated attempts at repeal, has made birth control available to poor and working-class women as well as to those with private coverage through their employers.
The National Academies of Sciences, Engineering and Medicine found that poor and low-income women are the primary recipients of abortions and yet bear the brunt of state laws that restrict it, including laws requiring multiple appointments or waiting periods or that limit which providers can perform them. The Times article says that many lawsuits written to weaken Roe through cuts are currently in state and federal courts. The anti-abortion group, “The Susan B. Anthony List,” has made fetal pain its top priority, and nearly 40 percent of the states have enacted laws asserting “a fetus can feel pain at 20 weeks after conception—a claim refuted by most medical experts.”
Essentially Roe vs. Wade set a national standard that allowed women, in consultation with their doctors, to decide whether to have an abortion. Now, according to analysts, the focus of pro-life groups is on viability and the length of time it takes for a fetus to reach a point where it can be considered a living being. States, Iowa for one, enacted laws banning most abortions after a fetal heartbeat can be detected. According to the Times article, Mississippi “recently passed a ban on abortions after 15 weeks.” The current electoral battle seems to be for state legislative seats, with political activity focused on electing either pro- or anti-abortion senators or representatives. Anthony Kennedy’s replacement on the Supreme Court will give a federal focus to the issue as well.
Finally, here is a couple of lighter notes, just to bring what is often a theoretical debate down to a human practice level. What about the birth-control pill? It went on the market in 1960 but was available only to married women then. Linda Gordon, a professor of history at New York University, remembers that she and her college friends shared a wedding ring that they passed back and forth among themselves when they were going to see a doctor to get a contraceptive device or pill. She says the practice seemed to work well, saving many young women from the agony of abortion and, at least in her case, allowing the development of a great family later on.