Justice Harry Blackmun and Roe v. Wade

Justice Harry Blackmun

How did Justice Blackmun arrive at his conclusions regarding the opinion rendered on Roe v Wade?

On page 76 of her book, Becoming Justice Blackmun, author Greenhouse explains that Justice Blackmun - during the consideration of whether the Supreme Court actually had jurisdiction in the cases before it, and also considering the issues surrounding abortion - was intrigued by the "right to privacy" concept that had been used in a Court case six years prior to Roe v. Wade. It was a case called Griswold v. Connecticut and in that case a person named Griswold challenged Connecticut's law banning birth control pills. Griswold won that case and part of the reason was Griswold's lawyers argued the case based on the right of privacy of a woman to decide whether or not to use birth control medications. It is her decision to make, not the government's, the ruling stated.

Still, Blackmun did not have to get too deep into the right to privacy concept because his colleague Hugo Black was taking a leadership position regarding the abortion case, and was giving the concept of "health" the "broadest possible meaning"; that meant, abortion could protect a woman's physical health as well as her mental health.

On page 78, Greenhouse follows Blackmun's decision-making leading up to the big issue he was challenged with in 1970 about abortion; two cases came before the court about abortion early in that year. One was Doe v. Bolton, a Georgia case, which held that an abortion was all right if and when a doctor and two other doctors agree that the fetus would "...very likely be born with a grave, permanent, and irremediable mental or physical defect." In other words, if the doctors knew in advance that the baby may be a down syndrome child, or be ill physically, the abortion would be justified. Ten years in prison was the penalty for a doctor who performed an abortion in Georgia in a situation not described by the law.

Meantime, when Roe v. Wade came before the court in 1970, it was a lawsuit challenging a Texas law that meant if a doctor performed an abortion it was a crime, except in one case; that was if the abortion was performed "for the purpose of saving the life of the mother" (78) Otherwise it was illegal. And so both of these cases came before the court because "abortion-rights" individuals wanted to have the nation's highest court change the law to make abortion not a crime for doctors.

The two cases had reached the High Court because of the Ninth Amendment to the U.S. Constitution, which offered "support for a right to marital privacy" (79), Greenhouse explains. Also, the lawyers that handled those two cases all the way through district and federal courts found supportive language in the Bill of Rights; the Bill of Rights, Blackmun found, served to protect a "zone of privacy" within its language. And the district court had ruled that, "For whichever reason, the concept of personal liberty embodies a right to privacy," and that right is apparently "broad enough," the lower court held, "to include the decision to terminate a pregnancy" (79).

With all this as a backdrop to Roe v. Wade, two justices, Harlan and Back, "suddenly retired," Greenhouse writes on page 80. That put pressure on the Court, and the debate within the Court and outside the Court heated up. President Richard Nixon cancelled an order that had given military hospital doctors the authority to conduct…