The accidental touchstone

Posted: Oct 04, 2005 10:10 AM

Yesterday, the president nominated White House counsel Harriet Miers to succeed Sandra Day O’Connor on the Supreme Court. Since Miers has never served as a judge, her views—that is, how she would rule on Roe v. Wade if an appeal comes before her on the bench—are uncertain.

That’s why we can, once again, look forward to hundreds of questions all designed to elicit the same answer: What does Miers think of Roe v. Wade? Talk about a farce!

Given Roe’s centrality, not only to the law, but also to our entire culture, it’s worthwhile to understand what Roe’s author, Justice Harry Blackmun, intended its reach to be.

For most of the thirty-two years since the ruling, all we had to go on was the written opinion in Roe itself and its companion case, Doe v. Bolton. Then on the fifth anniversary of Blackmun’s death, the Library of Congress released his papers to the public.

What these papers show is that, in the words of the Los Angeles Times, Blackmun’s goal was to “write a narrow ruling that would reform abortion laws, not repeal them.”

What’s striking about the story that emerges from these papers is the extent to which many of the ideas we associate with Roe were explicitly rejected by Blackmun and company. For instance, on the day Roe was announced, Chief Justice Burger said “plainly, the court today rejects any claim that the Constitution requires abortion on demand.” In a never-issued news release, Blackmun made the same point.

What’s more, Blackmun saw laws banning all abortions as infringements on the doctor’s rights, not the woman’s. During a private conference with the other justices, he insisted that “there is no absolute right to do with one’s body what you like. . . . ” To Blackmun, Roe was about vindicating “the right of the physician to administer medical treatment according to his professional judgment. . . . ” And at the time, Chief Justice Burger predicted that Roe would not have “sweeping consequences.”

As history shows, Roe and Doe went far beyond the author’s professed intentions and his colleagues’ predictions. Much of the blame lies at Blackmun’s feet: In Doe, he included a woman’s emotional health as part of the definition of health, which, regardless of what he intended, led directly to abortion-on-demand.

It’s difficult to imagine a group of intelligent men more in the dark about the consequences of their actions. It only reinforces my conviction that Roe is not only bad law: It’s an embarrassment to American law, which makes the way that Roe has come to dominate our public life especially grotesque.

In nominating Harriet Miers, someone who has been very visible, publicly trying to keep the ABA from endorsing Roe v. Wade, President Bush has obviously decided that the time has come for a public debate. And that’s a healthy thing for the country: Expose how this case has been misinterpreted and misused.

So, instead of turning the confirmation process into the theater-of-the-absurd, let’s hope the truth will come out. And maybe some of the senators will see, as much of the public is beginning to see, that Roe is a misbegotten, badly reasoned decision that we are better off without.


For further reading and information:

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David G. Savage, “Roe Ruling: More Than Its Author Intended,” Los Angeles Times, 14 September 2005.

Benjamin Wittes, “Letting Go of Roe,” The Atlantic Monthly, January/February 2005.

Benjamin Wittes, “The Hapless Toad,” The Atlantic Monthly, May 2005.

Fred Barbash, Peter Baker, and Michael Fletcher, “Bush Names Harriet Miers to Supreme Court,” Washington Post, 3 October 2005.