#harry blackmun

[politicalrpf]

"Precision Dancing" by Gene Basset, 1972.

[thoughts-of-a-social-worker]

Roe, Blackmun, and Abortion: A Reflection on the Interpretation of U.S. Law

As a woman, and as a human rights advocate, I was surprised to learn how little I knew about Roe v. Wade and the process by which the original Supreme Court decision was decided upon in 1973. This is unsurprising, since I was born more than 10 year post-Roe. My life was one where the protections afforded by Roe simply were – up until this summer anyway. I never learned about Supreme Court Justice Harry Blackmun and knew only sparse details about the case itself.

The podcast Slow Burn dedicated significant time and energy to research this in their episode “Roe Against Wade.” It details the journey of Justice Harry Blackmun – a centrist who came from extreme poverty and was “ludicrously modest” according to those who knew him. The story follows him from his initial hesitance to accept President Nixon’s nomination all the way to the present day where he has only grown more resolute about his opinion on Roe. In his work for the Court, Justice Blackmun identified as a strict constitutionalist, someone who believes the Constitution must be interpreted in the context of today’s problems. His life-long friend, Chief Justice Burger, assigned him to write the Roe opinion with the hope that it would be a narrow ruling. But, Blackmun wanted to be recognized as an independent thinker – not as a political pawn or a copy of Burger – so he set to work to learn as much about abortion history as he could in an attempt to discover whether or not abortion was a constitutional right. His research was extensive, ranging from ancient Greek and Roman perspectives on abortion to the medical profession’s ethics (informed by the Hippocratic Oath) to common law and English law. I was fascinated by how much of this knowledge he rolled into his opinion on the case. Most Court opinions are not so lengthy, but Blackmun’s arguments provided a strong enough case of support for Roe that an astounding seven out of nine Justices assented to the opinion – resulting in the legal right to abortion.

One thing that Blackmun (and other judges in the U.S.) struggled with was the fact that many laws are written vaguely. If you have read my blog post about the Declaration of Independence, Ibram X. Kendi, and the importance of language in our founding documents, you’ll notice a connection here. Like in Jefferson’s declaration where “all men” were said to be created equal – who did he mean by “all men” in that statement? Who was deserving of freedom, and what rights came with that freedom? It is difficult to prove with certainty that any law was ever created with the specific intent to be vague, but it does seem as though vague laws allow flexibility to interpret the law in ways that can be exploited to the benefit of one group or another. Individuals, groups, and our own leaders can then act in ways that they feel the law allows them to until they are legally challenged and a decision must be made by the courts to decide what is lawful and what is unlawful. The outcomes may be different depending on who is judging the case. This phenomenon of “legislating from the bench” is decried by some and lauded by others. I have to wonder if those who laud this act – sometimes called “judicial activism” – are correct. 

For those who are less familiar with American law and are wondering why “legislating from the bench” or “judicial activism” might be a good thing, I will provide some foundational knowledge. American law is rooted in the United States Constitution, a document that was signed by 39 of 55 delegates in 1787 and was ratified by all of the existing states by 1790. The Bill of Rights, a separate document originally proposing 12 amendments to the Constitution that was ultimately reduced down to ten, was ratified in 1791. These ten amendments provided the foundation for American freedoms. It is important to note that these amendments provided no protection from slavery, no right to due process of law or equal protection under the law, and no protection of the right to vote (on account of race, color, previous condition of servitude, sex, or age). It was not until 1920 that women were granted the right to vote with the passage of the 19th Amendment. Despite the protection of these rights being written into constitutional law, there are many human rights issues that have not been given legislative protection – in part, due to the issue of vagueness Blackmun noted in his own opinion with Roe. For example, in June 2020, the U.S. Supreme Court dealt with a case of employment discrimination on the basis of sexual orientation and gender identity. Because the language of the Civil Rights Act of 1964 only used the language “sex” the Court had to decide if the same law protected sexual orientation and gender identity. Justices on the bench had to decide what the intent of that law was and how to apply it to the current case. They chose to legislate from the bench, interpreting that if the original law was created “because of sex” then it necessarily included sexual orientation and gender identity. This was a major victory for the LGBTQ community, giving those who have experienced employer discrimination the right to file a complaint with the Equal Employment Opportunity Commission (EEOC). However, as our recent experience with the overturning of Roe has shown us, any of these rights which are not written into constitutionally-protected laws are at risk of being lost.

As a woman, a parent, a human rights advocate, and a social worker, I wish more people knew about the history behind the case of Roe v. Wade and were able to learn about the amount of research and contemplation that informed Blackmun’s final decision. A year before the decision was made, Gallup released poll results that showed 2 out of 3 of Americans believed abortion should be a matter settled between a woman* and her doctor. According to Pew Research Center survey results from July of this year, 62% of Americans say abortion should be legal in all or most cases, and these numbers are higher among young adults and those aged 30 to 49. Despite having majority support, the issue of abortion and reproductive rights remains a contentious and politicized one. 

Blackmun and his colleagues hoped to settle the issue of abortion rights once and for all with their decision in 1973. Now that I have read the opinion in its entirety, I cannot say that I agree with everything Blackmun said. I do agree, however, that there should be a guaranteed right to privacy which includes liberty from being forced to complete an unwanted pregnancy. Until Congress can pass a law explicitly stating a person’s right to bodily autonomy and reproductive rights, our nation will continue to see cases like this brought before the courts. Laws are made by legislators, and we have the power to decide which legislators represent us. I encourage all eligible voters to leverage their voting power in this fight. Show up to the polls in November – or submit an absentee ballot – and do not forget to research your candidates at the local, state, and federal level. I also highly encourage you to check out Slow Burn’s podcast episode on this topic. Whether you are for or against abortion, the background and history on this issue may help further inform your opinion and impact how you choose to advocate on the topic moving forward. 

* The term “woman” was used in this context because this was the language utilized in the Gallup poll and is not a reflection of my own personal beliefs. I know that the issue of abortion is one that affects many more people than just women and want to express my continued support for pregnant persons of all identities, as well as those who are continuing to fight for the right to bodily autonomy and reproductive freedom.

[thepopculturearchivist]

April 14, 1970

[demosthenesredux]

The 2003 Lawrence v Texas is a good Supreme Court decision (the court case that ruled criminalizing sodomy between consenting adults is unconstitutional). This ruling overturned the 1986 Bowers v Hardwick case which was the same issue but decided the other way.

The dissent by Harry Blackmun in Bowers v Hardwick is particularly important: "That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine."

We'll return to the religious values question later, but the key element is this: Every law can ultimately be enforced only by the legalized, armed violence of the state.

Do you want soldiers coming to your house or your friends' houses to investigate and punish private sexual behavior?

[plitnick]

Draft of Alito opinion overturning Roe v Wade

Draft of Alito opinion overturning Roe v Wade

Dear readers, I publish here the full, 98-page text of a draft opinion leaked to the newspaper, Politico, that completely overturns Roe v Wade. It is an awful opinion. Unfortunately, it capitalizes on the fact that Roe itself was a poorly thought out and badly written opinion that qualified what should have been absolute; that is the right of a woman, indeed of any person, to the full control of…

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[aparchives]

#ThisWeekInHistory: President Richard Nixon nominated Harry Blackmun to the U.S. Supreme Court (4/14/1970); Jackie Robinson, baseball’s first black major league player, made his official debut with the Brooklyn Dodgers on opening day at Ebbets Field (4/15/1947). 

[phillipcole]

Boston Public Radio part 4

Eagan: That was a familiar tune with a new twist.  Avonelle H. joseph is playing now on appropriate radio stations and on sale everywhere.  It was written, as were many other songs about this real person, by our live guest today Phil Cole.  Phil, how many songs did you write?

PBC: The album is called 55 Songs for the losing Candidate.  5 have been released.  The album is coming sometime this summer.  One more song is planned for release before the full album.  these include many duets with good singers, and a few great ones.

Braude: Ha ha.

PBC: I can’t say more than that.

Eagan: And it’s not about this election but one specific candidate in a foreign country.  Tell us about her.

PBC: Well, her name is Avonelle H. for Hector Joseph.  She’s a great lady who runs a ministry out of Trinidad called Is There Not A Cause.  last year she ran for Parliament against Dr. Keith Rowley and lost.  As she ran I wrote her a song a day for the length of the campaign.  Now we’re making them into songs.

Braude: And these are all adapted from famous songs.

PBC: All kinds of songs.

Braude: How could she lose with you feeding her all these great songs?

PBC: Simple, she didn’t use them.

Braude: What?

PBC: I think a lot of her but she’s not impressed with me.

Eagan: Unrequited love.

PBC: Just as well; we’re both married.

Braude: Alright, we have callers on the line.  You’re first with Phillip and Cole’s Variety Team.

Caller 1: Hey I seen your act in Providence.  it ain’t as squeaky clean as you say it is.

PBC: Ummm.

Caller 1: You know that dirty song about the italians.

PBC: Oh that one, in Providence?

Braude: The caller’s gone.  Do you know what he was referring to, Phil?

PBC: it must be my Green Green Grass of Home adaptation: Good to pinch the tourist’s...

Eagan: Oh ha ha  ha is that all?

PBC: Big hit on my southern tours, forgot I did it in Providence too.

Braude: You’re next on Boston Public Radio.

Caller 2: Hi Phil, I love your act.

PBC: Thank you.

Caller 2: But you never really answered the question at the start of the interview.

PBC: That happens a lot.

Eagan: hard to get somewhere when the whole team is present, isn’t it?

PBC: Is it supposed to get somewhere?

Caller 2: So what do you really think about the bathroom laws?

PBC: Federal government stay out.  It’s not my state, so if you don’t like it you stay out.  In North Carolina there’s an election.  If you don’t like the laws, throw the lawmakers out.  What’s democracy for if we can’t pass a stupid law once in a while then replace it a few years later.

Caller 2: Would you perform in North Carolina now?

PBC: Yes of course!  I’ll perform in a ladies room if you want me to.  My talent fits.

Eagan: Ha ha ha ha ha.

Braude: The caller’s gone now.  Phil you mean that.

PBC: Trust me, you don’t want Ruth Bader Ginzburg deciding what is and is not a man.  Harry Blackmun tried that and look what happened.  I must have said the secret word.  My agent, I mean publicist is bidding me to leave.

Eagan: Well, you’ve been a great guest and more straightforward than most.  Will you come again sometime.

PBC: I hope to.

(As I leave they again play part of Vote for Av-o-nelle Hector.)

[disregardedrambles]

If anyone knows where I can find the script(s) for Harry Blackmun's confirmation hearing when taking AJ for the Supreme Court, I would LOVE YOU to them emailed to me :*