Special Report

Justice Death

The late Harry Blackmun is being lionized as the second coming of Oliver Wendell Holmes -- all because he made it easier to kill.

By 3.8.04

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Upholding abortion in the Casey decision, Anthony Kennedy permitted himself one of the most ludicrous lines in Supreme Court history. "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," he wrote. Harry Blackmun's just released papers explain Kennedy's babblings: he was an eager-to-please pupil of Blackmun's. "Dear Harry," Kennedy wrote to him. "I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey and at least part of what I say should come as welcome news."

After Kennedy hurried to Blackmun with his "welcome news," Blackmun scrawled on a memo pad: "Roe sound."

During his lifetime, Blackmun was regarded as a judicial hack. But reading the press after last week's release of his papers, one would think he kept company with Oliver Wendell Holmes. "Humble Legal Giant," read one headline. "Old fraud" would be more like it.

Blackmun, even as he sniffed at his colleagues' politics, produced legal opinions that read like the work of a New York Times editorialist. And far from humble, he conceived of his role in melodramatic and essentially egotistical terms. In 1989, when the Supreme Court looked like it might break from its Roe v. Wade reasoning with the Webster v. Reproductive Health Services decision, Blackmun read his dissent aloud. "I fear for the future," he said. "The signs are evident and very ominous, and a chill wind blows." At another time he said, "I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light." Typical of his self-indulgent view of himself as the enlightened liberal in the white hat was his cameo appearance as a judge in the Steven Spielberg movie Amistad.

Blackmun always made a lot of noise about his agony over the death penalty for murderers. But that his decisions consigned millions of unborn children to death never troubled him. Far from it. He was very proprietary about his role in Roe v. Wade.

THE LEFT SCRUTINIZES JUDGES for political conflicts of interest -- witness the infantile controversy over Antonin Scalia's duck--hunting trip with Dick Cheney -- unless they involve their own. Blackmun had a pro-abortion conflict of interest from the beginning. He was legal counsel for the Mayo Clinic before he became a judge. As a former Mayo Clinic counsel, he was a voicebox for the growing pro-abortion medical culture of the 1970s. He would talk proudly about having researched his Roe v. Wade decision in the Mayo Clinic's library.

It was no wonder that he could disregard the Constitution so easily; he had disregarded an even more ancient document, the Hippocratic oath, before it. Historians of Roe v. Wade note that Blackmun holed up in the Mayo Clinic's library so as to determine to his tendentious satisfaction that ancient doctors ignored the Hippocratic oath and performed abortions. Hippocrates was wrong, concluded Blackmun. Why, Blackmun asked, did his oath not "dissuade abortion practice in his time and that of Rome?" Blackmun found some source that dismissed Hippocrates as an extremist of his time, having written an oath that came from "a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians."

Blackmun referred to the Hippocratic oath's "apparent rigidity." "The Oath was not uncontested even in Hippocrates' day," he wrote in Roe v. Wade, and if Christianity hadn't come along it would never have gained currency. "The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath 'became the nucleus of all medical ethics' and 'was applauded as the embodiment of truth.' Thus, suggests Dr. [Ludwig] Edelstein, it is 'a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.'"

The irony of Blackmun's pompous pronouncement about the death penalty -- "From this day forward, I no longer shall tinker with the machinery of death" -- was lost on him. He had set a real machinery of death, the abortion industry, in motion -- and made sure to find a few deluded disciples like Anthony Kennedy to keep it going.

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About the Author
George Neumayr, a contributing editor to The American Spectator, is co-author, with Phyllis Schlafly, of the new book, No Higher Power: Obama's War on Religious Freedom.