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Published online by Cambridge University Press: 24 February 2021
The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun of the United States Supreme Court with its first Presidents’ Award for Distinguished Contributions to the Fields of Law and Medicine. It is my task to explain why that honor is so richly deserved.
To me the answer is simple: as much as any other judge in our Nation's two hundred-year constitutional history, Harry Blackmun has shaped and defined our modern conception of the constitutional right to privacy, as well as our developing notions of the scope and limits of medical privacy. During his twenty-eight years on the federal bench and his seventeen years on the Supreme Court, Justice Blackmun has played a major role in rebalancing what I call “the medical triad” — the triangular relationship among the patient, the doctor and the state, with which this Society's members are so intimately familiar.
Harvard 1975; Oxford 1977; Harvard 1980; Law Clerk to Justice Harry A. Blackmun, October Term 1981. This essay derives from remarks delivered at the Annual General Meeting of The American Society of Law and Medicine in Boston, Massachusetts on October 23, 1987.
1 By singling out this contribution, I do not mean to slight other areas in which Justice Blackmun has played an equally profound role in shaping the Court's jurisprudence. See, e.g., Koh, , Equality with a Human Face: Justice Blackmun and the Equal Protection of Aliens, 8 HAMLINE L. REV. 51 (1985)Google Scholar; Kobylka, , The Court, Justice Blackmun, and Federalism: A Subtle Movement with Potentially Great Ramifications, 19 CREIGHTON L. REV. 9 (1985)Google Scholar; McDaniel, , Public Trials, 8 HAMLINE L. REV. 127 (1985)Google Scholar; Moore, , Justice Blackmun's Contributions on the Court: The Commercial Speech and State Taxation Examples, 8 HAMLINE L. REV. 29 (1985)Google Scholar.
2 See Jenkins, A Candid Talk With Justice Blackmun, N.Y. Times, Feb. 20, 1983, at § 6 (Magazine), 20, 24 (quoting Blackmun, J.)(” ‘[But] I probably would have been a poor physician.’ “).
3 See Blackmun, , Remarks at the Commencement Exercises of Mayo Medical School, 55 MAYO CLINIC PROC. 573, 575 (1980)Google Scholar[hereinafter Mayo Remarks].
4 See Pollett, , Harry A. Blackmun, in 5 THE JUSTICES OF THE UNITED STATES SUPREME COURT 3, 5 (Friedman, L. & Israel, F. eds. 1978)Google Scholar. Some commentators argue that Justice Blackmun's mathematics training, coupled with his extended exposure to the “exacting quantitative nature” of tax law, have made him unusually “well-versed in the scientific method.” See Schlesinger, & Nesse, , Justice Harry Blackmun and Empirical Jurisprudence, 29 AM. U.L. REV. 405, 406 & n.3 (1980)Google Scholar. Drawing upon this background, the Justice uses empirical data and statistical analysis to add precision to the Court's reasoning and to “assist the court in reaching fair adjudicative results.” Id. at 406. For a discussion of two recent cases in which Blackmun understood the import of statistical data and the Court did not, see Appelbaum, , The Empirical Jurisprudence of the United States Supreme Court, 13 AM. J. L. & MED. 335 (1987)Google Scholar (discussing McCleskey v. Kemp, 107 S. Ct. 1756 (1987); Barefoot v. Estelle, 463 U.S. 880 (1983)).
5 Jenkins, supra note 2, at 24 (quoting Blackmun, J.) (” ‘It was the happiest decade in the lives of my wife and myself…. I was able to have a foot in both camps — law and medicine.’ “).
6 Mayo Remarks, supra note 3, at 573. Justice Blackmun later testified that “my experience [at the Mayo Clinic] … fortified me, made me somewhat better educated and more knowledgeable in medical fields than I otherwise would be.” Harry A. Blackmun: Hearing Before the Senate Judiciary Comm., 91st Cong., 2d Sess. 41 (1970) (testimony of Blackmun, J.) [hereinafter Confirmation Hearing]. During his Mayo years, the Justice served as a member of the Mayo Section of Administration, and played a major role in founding the Rochester Methodist Hospital, for which he served as a Director, Executive Committee member, and Secretary. During this period, he also authored a number of articles on legal-medical subjects. See, e.g., Blackmun, , The Physician and his Estate, 36 MINN. MED. 1033 (October 1953)Google Scholar; Blackmun, Legal Problems Attendant Upon the Late Effects of Head Injuries, reprinted in THE LATE EFFECTS OF HEAD INJURY (A. Walker, W. Caveness & M. Critchley, eds. 1969). In honor of the Justice's work as legal counsel, in 1977 the Clinic dedicated the Blackmun Law Library in his honor.
7 See Confirmation Hearing, supra note 6, at 41 (testimony of Judge Blackmun) (“We, of course, have had some malpractice cases [in the Eighth Circuit]…. I find myself confronted with the fact that my colleagues say, I am glad you are sitting on this kind of a case because you know medical problems better than I do.“).
8 Id. For a thorough survey of Justice Blackmun's Eighth Circuit opinions, see Lay, , The Cases of Blackmun, J. on the United States Court of Appeals for the Eighth Circuit, 1959-1910, 8 HAMLINE L. REV. 2 (1985)Google Scholar.
9 See L. KOHLMEIER, GOD SAVE THIS HONORABLE COURT 173 (1973) (“Blackmun was a political compromise, a noncontroversial judge who had no taste either for resisting the Warren Court's doctrines 6r pressing forward constitutional rights“).
10 See Pollett, supra note 4, at 4.
11 See Confirmation Hearing, supra note 6,'at 12 (letter from the ABA Standing Comm. on the Fed. Judiciary).
12 See Pollett, supra note 4, at 4.
13 This theme is developed further in Note, The Changing Social Vision of Justice Blackmun, 96 HARV. L. REV. 717, 719-22 (1983)CrossRefGoogle Scholar.
14 402 U.S. 389 (1971).
15 Id. at 403.
16 Id. at 413 (Douglas, J., dissenting).
17 See infra text accompanying notes 29-53. Ironically, in a dissent written more than a decade later, Blackmun would himself question whether psychiatric testimony regarding a defendant's future dangerousness should be admissible in a capital case, given proof that such testimony is wrong two times out of three. See Barefoot v. Estelle, 463 U.S. 880, 916 (1983) (Blackmun, J., dissenting) (“when a person's life is at stake—no matter how heinous his offense— a requirement of greater reliability should prevail. In a capital case, the specious testimony of a psychiatrist, colored in the eyes of an impressionable jury by the inevitable untouchability of a medical specialist's words, equates with death itself.“). For further explication of Justice Blackmun's Barefoot dissent, see Appelbaum, supra note 4, and Stone, Justice Blackmun: A Survey of His Decisions in Psychiatry and Law, 13 AM. J. L. & MED. 291 (1987)Google Scholar.
18 402 U.S. at 413-14 (Douglas, J., dissenting).
19 410 U.S. 179(1973).
20 Id. at 196.
21 Id. at 196-97.
22 410 U.S. 113 (1973).
23 Along with Brown v. Board of Education, 347 U.S. 483 (1954), Roe is perhaps the only Supreme Court case decided this century that most Americans know by name. See Hazard, , Rising Above Principle, 135 U. PA. L. REV. 153, 157 (1986)Google Scholar (“The leading case of the 1950's, indeed of the century, is of course Brown v. Board of Education.... That of the 1970's is unquestionably Roe v. Wade.“). Accord, Sunstein, , Lochner's Legacy, 87 COLUM. L. REV. 873, 873 (1987)CrossRefGoogle Scholar(Roe is a “defining case” in modern constitutional jurisprudence).
24 See Remarks by H. Blackmun, Franco-American Colloquium on Human Rights 15 (Dec. 19, 1979) [hereinafter Franco-American Colloquium] (“All this has changed my life, in a distinct sense.“). See also Neuborne, Blackmun: Intellectual Openness Elicits Needed Respect for the Judicial Process, Nat'l L.J., Feb. 18, 1980, at 18, col. 2, 23, col. 1 (“The emergence of Blackmun as an independent force [on the Court] began, of course, with his controversial opinion in Roe v. Wade ….“); Note, supra note 13, at 725 (“Justice Blackmun's conception of healthy, selfgoverning institutions … has increasingly given way in the years since Roe to an emphasis on an inquiry that discovers and responds to concrete problems.“). For an analysis of Justice Blackmun's decisions in the abortion cases, see Comment, Justice Harry A. Blackmun: The Abortion Decisions, 34 ARK. L. REV. 276 (1980)Google Scholar.
25 See B. WOODWARD & S. ARMSTRONG, THE BRETHREN 165-89, 229-40 (1979). By openly agonizing over Roe “not only for myself, but [also] for the Court,” Justice Blackmun consciously “disobeyed one suggestion Hugo Black made to me when I first came here. He said, ‘Harry, never display agony in public, in an opinion. Never display agony. Never say that this is an agonizing, difficult decision. Always write it as though it's clear as crystal.’ “ Jenkins, supra note 2, at 26 (quoting Blackmun, J.).
26 See Franco-American Colloquium, supra note 24, at 14. In his research, Justice Blackmun canvassed, inter alia, the views of the American Medical Association, the American Public Health Association and the American Bar Association. Id.
27 Roe's heavy emphasis on the rights of doctors accounts for much of its unpopularity among legal scholars. See, e.g., Tribe, , The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 HARV. L. REV. 330, 335 (1985)Google Scholar (“[T]he Supreme Court in Roe v. Wade spoke as though it were protecting the ‘privacy’ rights of both the woman and her physician, and indeed at times as though the physician's rights were somehow primary ….“); Asaro, , The Judicial Portrayal of the Physician in Abortion and Sterilization Decisions: The Use and Abuse of Medical Discretion, 6 HARV. WOMEN's L.J. 51, 59 (1983)Google Scholar (“Blackmun's abortion opinions are as much vindications of the right of the physician to practice medicine as they are feminist ‘pro-choice’ victories — if not more so.“).
28 Roe v. Wade, 410 U.S. at 165-66 (emphasis added). See also id. at 166 (“Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.“).
29 See Jenkins, supra note 2, at 26 (“[Blackmun's] office has received more than 45,000 letters about [Roe v. Wade.] ('Think of any name; I've been called it in these letters: Butcher of Dachau, murderer, Pontius Pilate, Adolph Hitler’), and he is still … picketed by anti-abortion groups when he shows up for speaking engagements ….“).
30 See, e.g., Justice Blackmun's dissenting opinion one year before Roe in the decision that temporarily invalidated the death penalty, Furman v. Georgia, 408 U.S. 238, 405 (1972)(Blackmun, J., dissenting)(“Cases such as these provide for me an excruciating agony of the spirit.“).
31 See Mayo Remarks, supra note 3, at 573-74 (remarks of Blackmun J.)(“The Court is a special place to observe from …. One sees what people—including medical people, their patients, and hospitals—are litigating about today, not only with each other but with their governments—federal, state, and municipal. One gets a sense of their desires and their frustrations, of their hopes and their disappointments, of their profound personal concerns, and of what they regard as important and as crucial…. We see, in sum, what I think is a constant, seething, economic, domestic, and ethical struggle.“).
32 See, e.g., Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)(Blackmun,J.)(holding that the use of a leather strap to discipline convicts in the Arkansas state penitentiary violated the Cruel and Unusual Punishments Clause of the eighth amendment).
33 Note, supra note 13, at 722-23. Cf. Burt, , Disorder in the Court: The Death Penalty and the Constitution, 85 MICH. L. REV. 1741, 1803CrossRefGoogle Scholar (1987)(Furman, Roe, and the Nixon Tapes Case arose at a time of “pervasive doubts about the legitimacy of our governmental institutions. These doubts were fueled by the prior decade's convulsive experience of political assassinations, race riots, and an Asian war whose brutality escalated as its intelligibility declined. Because the Justices saw themselves as special guardians of legitimacy in American society, it is not surprising that they should also see a special curative mission for themselves arising from these convulsive challenges to legitimacy.“).
34 Compare Wyman v. James, 400 U.S. 309, 323 (1971) (Blackmun, J., for the Court) (depicting welfare caseworker as “not a sleuth but rather, we trust, … a friend to one in need“) with Lassiter v. Department of Social Servs., 452 U.S. 18, 46 (1981) (Blackmun, J., dissenting) (“When the parent is indigent, lacking in education, and easily intimidated by figures of authority, the imbalance [between the state and an individual whose parental rights it seeks to terminate] may well become insuperable.“). My colleague Robert Burt has traced a parallel trend injustice Blackmun's writings on the death penalty. See Burt, supra note 33. In Professor Burt's view, Justice Blackmun's dissent in Furman, supra note 30, revealed an “obvious struggle between his conscience and his conception of judicial role obligations.” See 85 MICH. L. REV. at 1757. This probably contributed to his stony silence in the death penalty cases heard during the next decade. In a series of 1983 and 1987 decisions, however, a “newly vocal,” Blackmun, id. at 1818, “seemed almost to explode in rhetorical force,” id. at 1817, declaring that “ft]he errors and misteps [overlooked by the Court] … are too much for me to condone.” Barclay v. Florida, 463 U.S. 939, 991 (1983)(Blackmun, J., dissenting). See also McCleskey v. Kemp, 107 S. Ct. 1756, 1794 (1987)(Blackmun, J., dissenting); California v. Brown, 107 S. Ct. 837, 850 (1987) (Blackmun, J., dissenting); California v. Ramos, 463 U.S. 992, 1029 (1983)(Blackmun, J., dissenting); Barefoot v. Estelle, 463 U.S. 880, 916 (1983)(Blackmun,J., dissenting).
35 406 U.S. 715 (1972). For further discussion of Jackson, see Stone, supra note 17, and A. STONE, LAW, PSYCHIATRY, AND MORALITY 104-06 (1984).
36 Jackson's attorney argued that “Jackson's commitment under these circumstances amounted to a ‘life sentence’ without his ever having been convicted of a crime ….” 406 U.S. at 719.
37 Id. at 730, 738-39. Justices Powell and Rehnquist took no part in the consideration or decision of the case. Id. at 717.
38 Id. at 738 (emphasis added).
39 457 U.S. 307, 325 (1982)(Blackmun, J., concurring).
40 Id. at 319. For a critique of the Court's Youngberg opinion, see A. STONE, supra note 35, at 126 (“[H]aving established that right, the Court found some paternalism under the shell of liberty“).
41 457 U.S. at 318.
42 Id. at 330 n.* (Burger, C.J., concurring in the judgment).
43 Id. at 326 (Blackmun, J., concurring) (“If a state court orders a mentally retarded person committed for ‘care and treatment,’ … commitment without any ‘treatment’ whatsoever would not bear a reasonable relation to the purposes of the person's confinement.“) (emphasis in original).
44 Id. at 327. In arguing that an individual has a right not just to freedom from harm, but also to freedom to flourish and develop, Justice Blackmun espoused a concept of liberty far fuller than the majority's. Compare I. Berlin, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 121 (1979) (elaborating on the distinction between “freedom from” and “freedom to“) with Youngberg, 457 U.S. at 327 (Blackmun, J., concurring) (“If a person could demonstrate that he entered a state institution with minimal self-care skills, but lost those skills after commitment because of the State's unreasonable refusal to provide him training, then, it seems to me, he has alleged a loss of liberty quite distinct from—and as serious as—the loss of safety and freedom from unreasonable restraints.“). It seems likely that Justice Blackmun's decision to concur in the Court's narrower holding was driven by two strategic motives: to blunt Chief Justice Burger's suggestion that the Court's narrow ruling had somehow implicitly rejected the possibility of a broader constitutional right to treatment, see supra note 42; and to offer a theory that would attract the future support of Justice O'Connor, then in her first term on the Court. See text accompanying note 39, supra.
45 For another example of Justice Blackmun's view of institutional accountability, see O'Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), in which the Court denied chronically ill elderly nursing home patients a hearing before their nursing home was decertified for Medicare and Medicaid benefits. The Court flatly rejected the residents’ claim that their home's decertification would deprive them of life, liberty, and property by exposing them to “transfer trauma“—an alleged increase in morbidity and mortality resulting from their forced relocation from one institution to another. Justice Blackmun refused to “join such a heartless holding,” which he argued effectively diminished the state's accountability for its actions. Id. at 803 (Blackmun, J., concurring). He concluded that in fact, decertification could deny the claimants “liberty” and “property” interests. Id. at 791-92. He went on, however, to analyze the state of medical research on “transfer trauma,” and found that research too inconclusive to support the patients’ claim that such a deprivation had actually occurred. Id. at 804. See also Cohen, , Legislative and Educational Alternatives to a Judicial Remedy for the Transfer Trauma Dilemma, 11 AM. J.L. & MED. 405, 411 (1986)Google Scholar (“The present state of research on transfer trauma justifies Justice Blackmun's conclusion and forecloses any judicial recognition of transfer trauma.“).
46 438 U.S. 265 (1978).
47 Id. at 403, 407 (separate opinion of Blackmun, J.).
48 432 U.S. 519 (1977).
49 432 U.S. 438 (1977).
50 432 U.S. 464 (1977).
51 Poelker held that public hospitals that provided publicly financed services for childbirth were not also constitutionally required to perform abortions. Beal and Maher additionally held that states were not required under the Medicaid or Social Security programs to pay the expenses incident to nontherapeutic abortions.
52 See 432 U.S. at 462 (Blackmun, J., dissenting).
53 Id. at 462-63. Three years later, Justice Blackmun reiterated his Beal dissent in Harris v. McRae, 448 U.S. 297 (1980), which upheld the constitutionality of the Hyde Amendment, a statute eliminating federal funding for almost all abortions. See id. at 348 (Blackmun, J., dissenting). For critiques of Harris, see Tribe, supra note 27, at 336-40; Perry, Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae, 32 STAN. L. REV. 1113 (1980).
Three years after Harris, in Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983), Blackmun again displayed his sensitivity to the concerns of indigent women seeking abortions. Dissenting from that portion of the majority's decision upholding a statutory requirement that abortions be followed by submission of tissue samples to a board-eligible or certified pathologist, Blackmun argued that mandatory resort to a pathologist did not further important state-related health concerns and could increase the cost of a first-trimester abortion by as much as $40. See id at 497 (Blackmun, J., concurring in part and dissenting in part) (“Although this increase may seem insignificant from the Court's comfortable perspective, I cannot say that it is equally insignificant to every woman seeking an abortion.”).
54 See Ely, , The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973)CrossRefGoogle ScholarPubMed; Hearings Before the Subcomm. on Separation of Powers of the Senate Judiciary Comm., 97th Cong., 1st Sess., June 10, 1981, at 310 (Testimony of Robert Bork)(“I am convinced, as I think most legal scholars are, that Roe v. Wade is itself, an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.“).
55 See, e.g., Freund, , Storms Over the Supreme Court, 69 A.B.A.J. 1474, 1480 (1983)Google Scholar; Regan, , Rewriting Roe v. Wade, 77 MICH. L. REV. 1569 (1979)CrossRefGoogle Scholar; Karst, , Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 53-59 (1977)CrossRefGoogle Scholar; Perry, Abortion, the Public Morals, and the Police Power: The Ethical Function of Substantive Due Process, 23 UCLA L. REV. 689 (1976)Google Scholar; Heymann, & Barzelay, , The Forest and the Trees: Roe v. Wade And Its Critics, 53 B.U.L. REV. 765 (1973)Google Scholar; Tribe, , Foreword, Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1 (1973)CrossRefGoogle Scholar.
56 By highlighting this rhetorical shift, I do not mean to suggest that Justice Blackmun has abandoned the emphasis upon institutional accountability that animated his decisionmaking throughout the late 1970's. For a discussion of how the Justice has continued in recent opinions “to invoke and to act on images of abuse by institutions, structural harm, and individual suffering,” see Note, supra note 13, at 725-31.
57 For more detailed discussions of evolving notions of patient and professional autonomy, see Baron, , On Knowing One's Chains and Decking Them With Flowers: Limits on Patient Autonomy in “The Silent World of Doctor and Patient” 9 W.N. ENG. L. REV. 31 (1987)Google Scholar; Johnson, , Sequential Domination, Autonomy and Living Wills, 9 W.N. ENG. L. REV. 113 (1987)Google Scholar; and Spiegel, , Lawyers and Professional Autonomy: Reflections on Corporate Lawyering and the Doctrine of Informed Consent, 9 W.N. ENG. L. REV. 139 (1987)Google Scholar.
58 428 U.S. 52 (1976).
59 Id. at 67 n.8.
60 439 U.S. 379 (1979).
61 In justice Blackmun's view, the statute too narrowly limited a doctor's medical discretion to make determinations regarding the viability of a fetus. He declared:
Because [the point of viability] may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability — be it weeks of gestation or fetal weight or any other single factor — as the determinant of when the State has a compelling interest in the life or health of the fetus….
We reaffirm … that “the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.“
Id. at 388-89, 396 (citations omitted).
In Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983), discussed in supra note 53, Justice Blackmun expressed similar dissatisfaction with a statutory requirement that likewise constrained physicians’ discretion. A Missouri statute required the attendance of a second physician at all postviability abortions. Noting that Missouri did not require a second physician to attend any other medical procedure, Justice Blackmun argued that:
[consultation and teamwork are fundamental in medical practice, but in an operating room a patient's life or health may depend on split-second decisions by the physician. If responsibility and control must be shared between two physicians with the lines of authority unclear, precious moments may be lost to the detriment of both woman and child.
462 U.S. at 503 n.10 (Blackmun, J., concurring in part and dissenting in part).
62 “To acknowledge that ‘the patient's right of self-decision shapes the boundaries of the [authorities’] duty to reveal [medical risks]’ requires not that the patient's choice be an intelligent, informed and unemotionally determined decision, but that it be [the patient's choice and that the authorities, of regard for him as a human being, honor that choice ….” Goldstein, , For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 695 (1975)CrossRefGoogle Scholar (citations omitted)(emphasis in original). For a discussion of how authorities may reconcile legal requirements of informed consent with notions of deference to the dignity of the citizen as a human being, see id. at 692-93.
63 Writing for the Court in Planned Parenthood of Mo. v. Danforth, 428 U.S. 52 (1976), Blackmun struck down various Missouri statutory provisions restricting an individual woman's access to abortion, specifically those requiring spousal consent or parental consent for a minor. See id. at 67-75. Yet even after Danforth, the constitutionality of parental consent statutes remains controversial. Compare Bellotti v. Baird, 443 U.S. 622 (1979) (plurality opinion) (invalidating Massachusetts parental consent statute for abortion cases but stating that an appropriately structured judicial-consent requirement would be constitutional) with Ashcroft, 462 U.S. at 503-04 (Blackmun, J., dissenting in part) (continuing to assert that neither parents nor judges may veto a pregnant minor female's decision to have an abortion). Last Term, the Court divided equally on the question whether Illinois could constitutionally require an unmarried minor to wait twenty-four hours before having an abortion, so that her parents could be notified. Under the Illinois law, a doctor who performs an abortion on a minor without notifying her parents, or who fails to observe the twenty-four hour statutory waiting period, can be subjected to criminal prosecution. See Hartigan v. Zbaraz, 108 S. Ct. 479 (1987), aff'g by an equally divided court, 763 F.2d 1532 (7th Cir. 1985).
64 Tribe, supra note 55, at 11 (emphasis added).
65 106 S. Ct. 2169 (1986).
66 106 S. Ct. 2841 (1986).
67 106 S. Ct. at 2181.
68 Id. at 2178 (emphasis added). Although Justice Blackmun has perhaps felt institutionally constrained from formally repudiating Roe's reliance on the rights of both the doctor and the patient, his Thornburgh opinion reflects a considered determination to shift Roe's emphasis toward the autonomy of the individual, and not the doctor. That shift of emphasis makes clear that the decision ultimately being protected rests in the hands of the patient, not the physician. See id. (“In the years since … Roe, States and municipalities have adopted a number of measures seemingly designed to prevent a woman, with the advice of her physician, from exercising her freedom of choice…. [T]he constitutional principles that led this Court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy.“) (emphasis added).
69 Id. at 2179.
70 Id. at 2180.
71 Id. at 2184-85 (emphasis added) (citations omitted).
72 106 S. Ct. 2841 (1986) (Blackmun, J., dissenting).
73 Id. at 2843.
74 Id. at 2844. In fact, as Professor Tribe has recognized, the Court's prior decisions in Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); and Carey v. Population Servs. Int'l, 431 U.S. 678 (1977), had “protected the decision to engage in sex without bearing or begetting a child. These holdings thus mandated heightened scrutiny not of state restrictions on procreative sex, but of restrictions on recreational or expressional sex—sex solely as a facet of associational intimacy—whether between spouses or between unmarried lovers. The Hardwick majority nevertheless treated [these] prior decisions upholding access to contraceptives as if they involved the right to buy and use a particular pharmaceutical product, rather than the right to engage in sexual intimacy as such.” L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1423 (2d ed. 1988)(emphasis in original).
75 Velvel, Zeus Didn't Nod: There's Hope After All for Justice Blackmun, Nat'l L.J., Oct. 6, 1986, at 13, col. 2.
76 106 S. Ct. at 2848, 2851-52, 2854, 2856 (Blackmun, J., dissenting) (emphasis in original) (citations omitted).
77 Compare Note, supra note 13, at 717 n.6 (charting Justice Blackmun's leftward movement) with Barbash & Kamen, Blackmun Says ‘Weary’ Court Is Shifting Right, Wash. Post, Sept. 20, 1984, at Al, col. 3.
78 Blackmun, , Some Goals for Legal Education, 1 OHIO N.L. REV. 403, 408 (1974Google Scholar
79 Blackmun, , Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F.R.D. 343, 359 (1967)Google Scholar.
80 For an extended analysis of Justice Powell's role and rationales as the Burger Court's swing vote, see Kahn, , The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 YALE L.J. 1 (1987)CrossRefGoogle Scholar.
81 Cf. Pressman, Blackmun Calls for Faith During Tumultuous Times, L.A. DAILY J., Jan. 29, 1980, at 1, col. 6 & 9 (quoting Blackmun, J.) (“It is a time to be aware of our basic fallibility. It is a time when one should recognize now and forever that there is no room in the law for arrogance.“).
82 For a prediction that this would happen, see Neuborne, supra note 24, at 18, cols. 2-3 (“One important measure of judicial quality is the ability to generate respect for the processes of adjudication even from persons who disagree with the result…. [Justice] Blackmun has ... a significant role [to play on the Supreme Court] as a justice capable of eliciting respect for the process of judging.“).
