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No account of the late Justice Harry Blackmun — or the jurisprudence he helped to shape — could possibly avoid that profundity that stands near the beginning of his landmark opinion in Roe v. Wade. "Pregnancy often comes more than once to the same woman," wrote Blackmun, "and . . . if man is to survive, [pregnancy] will always be with us." It was plain at once that we were in the presence of no ordinary mind.
Regrettably, Blackmun's opinion reached its philosophic heights at that point, and the rest of his argument caused even such liberals as Archibald Cox to scratch their heads in puzzlement, even as they welcomed the result. For the result was to create a new constitutional "right to abortion."
In one stroke, Blackmun and his colleagues had "nationalized" the right to abortion, sweeping away virtually all of the state laws that placed even mild restrictions on abortion.
The further result was the most radical law on abortion in the western world. Thanks to Roe v. Wade, and its companion case, Doe v. Bolton, Justice Blackmun and his colleagues created a right to kill a child in the womb up through the entire length of the pregnancy — and even when the child began to emerge.
Lawyers often remember that Roe divided pregnancy into trimesters. But even lawyers seem to forget that, under Doe, the pregnant woman had the right to order an abortion for the sake of her "health" — meaning, in this instance, "mental health." Now a woman could order an abortion at any time if she thought she would suffer distress in being denied one.
But most remarkable about Blackmun's opinion in Roe was the romantic assertion of belief even in the face of scientific knowledge.
Modern embryology had revealed a host of precise, wondrous things about that life in the womb. Yet Blackmun suggested that all of this knowledge was as nothing when measured against our "feelings" or beliefs.
No one took seriously any longer the remark in the Talmud that an embryo at 40 days was largely water. Nor did anyone suppose, with Aristotle, that the being in the womb underwent a transition from the vegetative to the animal, to the rational or human.
Everyone understood that the offspring of human beings could be only human beings. And embryology now informed us, with stunning certitude, that everything that stamped our uniqueness genetically was present from the beginning, when we were, as aspiring zygotes, no larger than the period at the end of this sentence.
Yet in the face of this understanding, deepened with science, Justice Blackmun invoked the religion of relativism.
There were no objective or settled truths; truth would always be "relative" to the opinions that were dominant in any place. "When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus," wrote Blackmun, "the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."
In other words, the presence of disagreement, on any controversy, indicates the absence of truth. Reduced to its root proposition, it was a grand non-sequitur — what the philosophers would call a self-refuting proposition. After all, all I need to do is record my own disagreement to that proposition, and that should be enough to prove its falsity.
But beyond that, most people would consider this jural claim simply baffling. The country has been divided over issues such as slavery or civil rights, and no one has suggested that, in the face of this division, it is impossible for any one of us to cast a judgment on the rightness or wrongness of the matter.
But with Roe v. Wade, Blackmun took a major step into converting even the urbane and worldly people in the country into a collection of relativists. Henceforth, even people with college education would profess to "know" nothing of the nature of the being in the womb.
Twenty-five years later, people no longer find anything the least remarkable in this claim: We have a right to take human life if it interferes with our interests, strains our finances, or encumbers our plans. Or, if people still find that claim a bit unsettling, they retreat to something even more portentous: Namely, that we have a right to decide just who is a human being, or a human life, as it suits us.
During the crisis of our "house divided" over slavery, we learned that it was a grave thing when human beings were simply classified as something less than humans — and removed from the class of beings bearing rights. Now, thanks to the genius of Justice Blackmun, a whole class of human beings was classified as something less than human — and placed then outside the protections of the law. Their lives could be taken at any time without the need even to render a justification.
For his stroke of originality, Blackmun came to be celebrated in "progressive" circles for his "growth" and liberal humanism. For this achievement, he was heralded by Columbia University as one of the "premier jurists" of our age.
Blackmun's deeper genius, running beyond his wit as a judge, was that he knew just who had the power to pronounce him one of the premier jurists of the age. And when he died on Thursday, he went on to his reward with the angels of the media and the law schools praising his memory.
But as Evelyn Waugh would say, the question is whether he knows better now.
