Wednesday, January 22, 2014

41 years later: The ghastly logic of Roe v. Wade and the Justice who "decided it"

Forty one years and 55 million murdered children later, Roe v. Wade remains the most horrendous Supreme Court decision since Dred Scott v. Sandford. In a commentary published in today's Chicago Tribune and shared via Facebook by Eric Metaxas, Ronald D. Rotunda recalls the chilling comments made by Justice Harry Blackmun, who wrote the majority opinion, during a private audience with him twenty years ago. Blackmun's tortured argument has long been criticized by even the most liberal of scholars as lacking in sound legal reasoning. His ghastly comments, as recalled by Rotunda, reflect a particularly cold kind of heartlessness from a man who, two decades later, still did not grasp the depths of the horror he had unleashed.

At the end of 1971, there were only seven justices on the court, so Chief Justice Warren E. Burger appointed a committee to select cases for argument, to avoid a 4-to-3 split. "The screening process was poorly conducted by the screening committee, of which I was a member," he said. It placed Roe for argument. "Our screening committee made serious mistakes. We had a bull by the horns."

He said, "The first (oral) argument was poor. Three of the four oralists were women. Sarah Weddington (one of the lawyers arguing the case) puts on her stationery, 'Winner of Roe v. Wade.' I find that peculiar." Blackmun's gratuitous comments about the gender of the oral advocates and their competence came with no transition, either before or after, and no explanation why.

During the first argument, Blackmun was "disturbed" that the parties did not discuss the Hippocratic oath. "One of the woman oralists, in reaction to my question, said that it was irrelevant." However, some versions of the oath say doctors cannot prescribe abortion and Blackmun considered that significant.

At the conference a few days later, the votes were tentative, according to Blackmun. He recalled that Justice Burger suggested "Someone should prepare a helpful memorandum, not a first opinion. (Justice William) Douglas wanted the assignment, but Burger gave it to me. I don't know why. Maybe because of my 10-year association with Mayo (Clinic)."

Blackmun's memorandum urged that the Supreme Court strike the law. He also "wanted (a) new oral argument, to get some help on the Hippocratic oath. Also, (Justices William) Rehnquist and (Lewis) Powell were now added to the court." Blackmun said Chief Justice Burger also wanted reargument. "I think that he thought that he might get a 5-to-4 majority to uphold the law." Then Blackmun said, with emphasis, "It was ugly."

During the summer recess, Blackmun went to the Mayo library, to research the history of the Hippocratic oath. At the second conference, the vote was 7 to 2 to invalidate the law.

Blackmun said Justice Byron White wrote a bitter dissent, referring to "raw judicial power." With a strong emphasis in his voice, Blackmun quipped: "I made Byron eat those words later in other cases." When White announced his dissent, "White was emotional." Blackmun asked rhetorically: "Why was White so strong against my view? His upbringing in modest circumstances? Or his wife's influence?"

It did not occur to Blackmun that White based his dissent on the court's precedent. Blackmun said, "We tried to decide the case on a constitutional basis, not a moral basis." Blackmun did not give that presumption to White.

Another Blackmun disclosure: "To date, I've gotten almost 70,000 letters on Roe. I have read almost all of them." He said many letters are "abusive" and he was amazed that many people objected to his decision. "Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised." 
He objected that "academic opinion was generally adverse" to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.