Roe v. Wade: Was Another Concern on J...

Roe v. Wade: Was Another Concern on Justic Blackmun's Mind?

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#1 Jan 22, 2013
Shortly after he had retired from the U.S. Supreme Court, Justice Harry Blackmun and his wife, Dorothy, joined another couple, my wife and me for a quiet dinner. He was reflective that evening, especially about his love of baseball. We three men at the table shared many baseball stories that evening, clearly boring the women. But Blackmun also reflected on the death penalty and Roe v. Wade.

He said that he had approached writing the opinion in Roe as he did with other opinions. He put aside his personal views and concentrated on the law. He believed that the law should progress one step at a time to avoid a leap too far. Such a leap could create years of tension and divisive confrontation as opponents sought to reverse the decision and proponents tried to shore it up. The shoring up might be with cases that affirmed the original decision and the abrupt shift in the direction of the law. Even better, he believed, would be several decisions that "filled in" the gap between the law before the divisive case and the situation after "the leap."

Blackmun recognized that the extension of the right of privacy would be analyzed and interpreted in many ways, some intended, some not. But he asked us to consider a time when a fearful government, possibly driven to intrusive and even paranoid behavior, might want to violate even the sanctity of the Catholic confessional and the attorney-client privilege.

Often, I have been haunted by that conversation as I wonder whether and how much Watergate influenced Roe v. Wade.

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