DEADLY INCOMPETENCE

[Blackmun] believed that doctors needed to have leeway to do medically necessary abortions. … [H]e described Georgia's law [later declared unconstitutional in his own Doe v. Bolton opinion!] as "a fine statute [that] strikes a balance that is fair." Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation's abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right….

Last year, on the fifth anniversary of Blackmun's death, the Library of Congress opened his papers to the public. His thick files on the abortion cases tell the little-known story of how Roe vs. Wade came to be. It is the story of a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them.

…On the day the ruling was announced, [Chief Justice Warren] Burger said, "Plainly, the court today rejects any claim that the Constitution requires abortion on demand."

Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. "I fear what the headlines may be," he wrote in a memo. His statement, never issued, emphasized that the court was not giving women "an absolute right to abortion," nor was it saying that the "Constitution compels abortion on demand."

Blackmun had said that abortion "must be left to the medical judgment of the pregnant woman's attending physician." So long as doctors were willing to perform abortions - and clinics soon opened solely to do so - the court's ruling said they could not be restricted from doing so, at least through the first six months of pregnancy.

But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider "all factors - physical, emotional, psychological, familial and the woman's age - relevant to the well-being of the patient."

It soon became clear that if a patient's "emotional well-being" was reason enough to justify an abortion, then any abortion could be justified. Legal scholars have long pointed to the shaky constitutional basis for a right to abortion….

Blackmun's opinion ends by saying: "The decision vindicates the right of the physician to administer medical treatment according to his professional judgment.... The abortion decision in all its aspects is inherently, and primarily, a medical decision.... If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available."

As some scholars later said, his opinion treated the pregnant woman as a bit player in a doctor's drama. --David G. Savage, Los Angeles Times staff writer, 9/14/2005

From the very beginning, the mainstream media have obscured the radical nature of the Roe v. Wade and Doe v. Bolton decisions. Typical media stories (and many opinion poll questions) would describe Roe as making abortion "legal for the first three months of pregnancy"--a partial truth, somewhat like shrinking the First Amendment to freedom of speech and excluding the parts about freedom of religion and the rights of assembly and petitioning the government.

It is therefore refreshing to see David Savage's report in the Los Angeles Times affirm what pro-lifers have said all along: Blackmun's "opinion made virtually all abortions legal as a matter of a constitutional right." Or "the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton," according to which "a patient's 'emotional well-being' was reason enough" to justify any abortion. And "legal scholars have long pointed to the shaky constitutional basis for a right to abortion."

To pro-lifers none of this is new. What is new is the exposure of Blackmun's legal naiveté and incompetence by a major newspaper.

I remember reading Roe v. Wade and Doe v. Bolton a day after they were issued. I was struck by the inadequacy of Blackmun's reasoning. There is Blackmun's pseudo-scholarly excursion into the history of abortion in ancient Persia, Greece, and Rome--all of it irrelevant to the constitutional issues at hand. There is his assertion that "we need not resolve the difficult question of when life begins"--the biological facts notwithstanding. Yet, a page or so later the issue is decided: "the unborn have never been recognized in the law as persons in the whole sense." The fetus is not a person under the Fourteenth Amendment, yet that same amendment contains an invisible right to abortion. And so on.

Blackmun's unsuccessful attempt to have the announcement of Roe and Doe accompanied by a press release that would deny what the Court obviously had done (imposing the right to abortion on demand) poses a dilemma for the passionate pro-abortionists of NOW and NARAL and the "pro-choice" political and media elites: Blackmun, their champion, was either dishonest or he did not understand his own rulings--or perhaps he was guilty of both dishonesty and incompetence.

Maybe Blackmun wanted to provide cover for his friend, Chief Justice Warren Burger, who erroneously believed that Roe and Doe did not establish abortion on demand. In any event, Chief Justice Burger soon recognized his mistake and began voting with the anti-Roe block.

Blackmun, however, became ever more shrill and irrational in his defense of Roe and Doe--unmoved by the carnage he had unleashed. As "choice" claimed ever more millions of unborn babies, Blackmun bought more and more into the legend that he was a great jurist.

At the end of Roe Blackmun said, "The decision vindicates the right of the physician to administer medical treatment according to his professional judgment.... If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available." Had Blackmun substituted the word "abortionist" whenever he spoke of "doctor" and "physician" in Roe and Doe, he might have recognized his horrendous error. Incapable of such insight, Blackmun spent his long career after Roe making sure that there were no effective "judicial remedies" to rein in the abortion industry.

"But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider "all factors - physical, emotional, psychological, familial and the woman's age - relevant to the well-being of the patient."

It soon became clear that if a patient's "emotional well-being" was reason enough to justify an abortion, then any abortion could be justified. Legal scholars have long pointed to the shaky constitutional basis for a right to abortion…. "

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After all these years, I only heard of Doe vs. Bolton recently myself. This is what made abortion legal up to the last minute aka "partial birth abortion" and included "emotional well-being" of the mother the all-around loophole.

Undoubtedly, one of Blackmun's clerks wrote the decision, but did not follow the outline Blackmun provided. Once it was written, Blackmun was either too lazy to check what the clerk had written or too stupid to understand the clerk had not follwed instructions.

Blackmun explained that the "right to privacy" was an "emanation of a penumbra" tied to the pursuit of happiness.

In other words, a spirit of a ghost of an idea.

Where did "right of privacy" come into the Row vs Wade decision? It's not mentioned here

The 'right to privacy' came from an earlier case, Griswold v Connecticut, which was not about abortion but birth control. Both "Roe" and "Doe" were bastard progeny of "Griswold."

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