Blackmun, Author of Roe Vs. Wade, Dies

Retired Supreme Court Justice Harry A. Blackmun, the shy, soft-spoken Minnesotan whose opinion legalizing abortion set off a loud and bitter national debate, died Thursday at age 90.

Since stepping aside five years ago, the justice, though frail, continued to come to the court each morning, where he could be seen breakfasting with a few young clerks.

But he fell at home recently and died at a suburban Arlington hospital of complications from surgery to repair his broken hip.

Blackmun’s 24-year career on the Supreme Court saw one of the most remarkable transformations in the court’s history. Appointed in 1970 as a law-and-order conservative by President Nixon, he retired in 1994 as the court’s last true liberal--a champion of women’s rights, an advocate of gay rights and an outspoken opponent of capital punishment.

He was always best known, however, as the author of Roe vs. Wade, the 7-2 decision that gave women a constitutional right to choose abortion. The 1973 decision made him a hero to millions of American women and a villain to nearly as many other people.

In a somber interview a decade after the ruling, Blackmun noted that no matter what followed, he would be remembered simply as “author of the abortion decision.”

“I’ll carry this one to my grave,” he said.

President Clinton praised Blackmun as a justice who had “an uncanny feel for the human element that lies just beneath the surface of all serious legal argument.”

His court colleagues eulogized him as a meticulous, hard-working jurist as well as a kind, considerate friend. “No one was more dedicated to the rule of law or more painstaking in the execution of his responsibilities on this court than Harry Blackmun,” said Justice Antonin Scalia, an ardent opponent of the abortion right. “He was a good man and a good justice, deserving of the respect of all Americans.”

Many have tried to explain Blackmun’s evolution as a justice. Some who knew him say the best explanation starts at home. His wife, Dorothy, an early feminist, and his three daughters helped make him a champion of women’s rights, they say.

For his part, the justice discounted the talk of how he had shifted from the right to the left.

“I haven’t changed. It’s the court that changed under me,” Blackmun once said.

That was true in part. He arrived just after the zenith of the liberal court under Chief Justice Earl Warren but was there to witness a steady procession of Republican appointees: nine in all between 1969 and 1991.

But Blackmun changed too. In his early years, he followed the lead of his boyhood friend, Chief Justice Warren E. Burger, a conservative Minnesotan who pressed for Blackmun’s appointment. They were known as the “Minnesota Twins.”

But in time, the two drifted apart as Blackmun, with growing confidence, adopted more liberal views. By the 1980s, he had allied himself with the liberal legends, Justices William J. Brennan and Thurgood Marshall.

Focus on Plight of the People

More so than any current justice, Blackmun focused on the plight of the people whose cases came before the court. While his colleagues focused analytically on the law, Blackmun asked about the individuals involved. His job was to do justice, not just decide a legal question, he told clerks.

In 1989, the court’s conservative majority ruled that child-care workers could not be sued because they ignored warnings and failed to remove a child from an abusive home. The case was brought on behalf of Joshua DeShaney, a boy who was nearly beaten to death by an abusive father.

“Poor Joshua,” Blackmun said in dissent, focusing alone on the child’s awful plight. “Victim of repeated attacks by a bullying, cowardly and intemperate father and abandoned by [the child-care workers] who learned what was going on yet did essentially nothing.”

In person, the modest and self-effacing Blackmun hardly looked to be someone who could set off a national firestorm. His fellow Minnesotan Garrison Keillor, the radio voice of Lake Wobegon, referred to Blackmun as “the shy person’s justice.”

Each year on Jan. 22, the anniversary of the Roe vs. Wade ruling, thousands of anti-abortion marchers parade by the court to voice their belief that abortion is murder.

On occasion, as angry, sign-carrying protesters marched by, the diminutive Blackmun, attired in a pale cardigan, watched quietly on the court steps. He was rarely noticed.

He was in only his second year on the court when the chief justice assigned him the task of writing the majority opinion in a case that challenged a Texas law that made abortion a crime. Burger selected his friend largely because his views were moderate on the abortion issue.

While liberals such as Douglas favored a strong opinion that would sweep aside all laws against abortion, Blackmun and Burger espoused a limited approach. They did not support “abortion on demand,” as Burger put it.

Once assigned the task, Blackmun plunged in wholeheartedly. He spent weeks researching the history of abortion, dating back to Persian and Roman times. Medicine had long been a special interest of Blackmun’s, and, as a student at Harvard University, he aspired first to become a doctor.

Later, as a prominent Minnesota attorney, he was named general counsel to the world-famous Mayo Clinic in Rochester, where his friends and co-workers were cardiologists, oncologists, psychiatrists and other medical professionals.

Though a Supreme Court justice, Blackmun approached the abortion issue as much like a physician as an attorney. He discovered that, in America during the 18th and 19th centuries, abortion was made illegal mostly because the operation was so dangerous. Countless women died of bleeding or infection from botched abortions.

By the 1970s, however, an early-term abortion performed by a qualified physician was safe, certainly less risky than full-term pregnancy. If that is so, Blackmun wondered, what is the justification for making abortion a crime?

“The court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution,” he wrote in his opinion for the court. “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” he concluded. The ruling said that states may not bar women from having abortions before the point that the fetus is viable.

Though reluctant at first, Blackmun soon became a fierce champion of the abortion right. He dissented bitterly in 1977 when the court ruled that poor women could not have an abortion funded with public money. Calling the result “punitive and tragic,” Blackmun said that “there is ‘another world’ out there, the existence of which the court, I suspect, either chooses to ignore or fears to recognize.”

Target of Death Threats

After the abortion ruling, Blackmun became a target of death threats and received hate mail by the bagful.

“His notoriety marked the end of much of our family’s privacy and freedom,” his daughter Susan wrote recently. “Dad never demonstrated any fear, although my sisters and I lived in terror he’d be killed by an assassin.”

One evening in March 1985, their fears nearly became reality. Blackmun and his wife were sitting in the living room of their Arlington apartment, which faced the Potomac River opposite Georgetown. A bullet smashed through the window and lodged in a chair. Neither the justice nor his wife were injured, and the FBI investigators never learned who fired the shot or even which side of river it was fired from.

Perhaps as a solace, Blackmun developed the odd habit of reading his hate mail in public. He once told a law students’ group that he had been called the “Butcher of Dachau, Pontius Pilate, King Herod, a child murderer--you name it” because of the abortion opinion. One holiday note began: “Dear Justice Blackmun, I pray this Christmas will be your last one.”

By the mid-1980s, as more conservative justices joined the court, Blackmun was convinced that the Roe ruling was about to “go down the drain,” as he put it.

“I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided,” Blackmun said in an impassioned dissent that he read from the bench in 1989. “The signs are evident and very ominous, and a chill wind blows.”

But his dire prediction did not come true, even though two more GOP-appointed justices were seated. The threat to Roe vs. Wade appeared to end in 1992, when three moderate-conservative justices signed a ruling affirming the right to abortion. With the election of Clinton, a supporter of abortion rights, Blackmun breathed a sigh of relief. At last, he felt he could retire, confident that his landmark opinion had survived.

Asked about Roe vs. Wade on the day he announced his retirement in 1994, Blackmun replied: “I think it was right in 1973 and I think it is right today. . . . It’s a step that had to be taken as we go down the road toward the full emancipation of women.”

Harry Andrew Blackmun was born Nov. 12, 1908, in Nashville, Ill. The son of a struggling grocer, he grew up in a working-class neighborhood of St. Paul, Minn. The first-born child, young Harry was quiet, bookish and something of a perfectionist. His parents were Methodists, and the household was somber and serious, but he recalled years later that the mood was often enlivened by classical music playing on the Victrola.

As a student, Blackmun excelled, especially in mathematics. In 1925, the year his fellow St. Paul native F. Scott Fitzgerald published “The Great Gatsby,” Blackmun headed east to enroll at Harvard. As an undergraduate, he showed an aptitude for logical, rigorous thinking and was torn between his interests in math and medicine.

But upon graduation, he enrolled instead in Harvard Law School. He emerged in 1932, during the midst of the Great Depression, and returned to Minnesota to begin a career as a tax and estate lawyer. He also taught law in the evenings at a school where his friend Burger had enrolled.

In 1937, he met a vivacious young woman named Dorothy Clark on the tennis courts, and, after four years of dating, the always-cautious attorney proposed marriage.

Blackmun had served nine years as resident counsel at the Mayo Clinic when President Eisenhower named him to the U.S. 8th Circuit Court of Appeals in 1959. He developed a reputation as a moderate, methodical judge, strong against crime and more liberal on civil rights.

By a stroke of luck, he won a Supreme Court nomination in 1970. The year before, Justice Abe Fortas had been forced to resign when it was revealed that he had accepted $20,000 from a foundation controlled by an indicted stock manipulator.

Nixon was determined to fill the vacant seat with a Southerner. He tried twice, first nominating Judge Clement F. Haynsworth Jr. of South Carolina and then G. Harrold Carswell of Florida. Both were defeated by Senate Democrats, mostly on grounds that they were too conservative on civil rights.

At a key moment, Chief Justice Burger, Nixon’s first court appointee, recommended his boyhood friend. With more relief than enthusiasm, Nixon nominated Blackmun and the mild-mannered Minnesota judge won a quick, unanimous confirmation from the Senate.

Scholarly Plodder

At the court, Blackmun developed a reputation as a scholarly plodder. He worked prodigiously long hours and drove his clerks to check and recheck facts and citations. Each morning during the court term, Blackmun and his four clerks could be seen at 8 in the court’s public cafeteria. Exactly one hour later, they arose as a group and headed upstairs to the justice’s chambers. They were often still together at 8 in the evening.

In 1978, he cast a decisive vote to preserve affirmative action in the celebrated Bakke case. The court ruled that Allan Bakke, a highly qualified white student, was discriminated against by the UC Davis Medical School because 16 admissions were set aside for generally less qualified minority students. But the justices also endorsed “race-conscious” policies that sought to overcome past discrimination.

“In order to get beyond racism, we must first take account of race. There is no other way,” Blackmun said in a concurring opinion.

In 1986, Blackmun drafted an opinion that he thought would speak for a majority in striking down anti-gay laws that made sodomy a crime. The “right to privacy” found in the Constitution surely protected such conduct, he believed. But the wavering Justice Lewis F. Powell changed his mind and cast his vote with a conservative majority to uphold a Georgia anti-sodomy law.

In an angry dissent, Blackmun borrowed from Louis Brandeis, a Supreme Court justice of an earlier era, to say that the case truly involved the right “most valued by civilized men: the right to be let alone.”

In his final years on the court, Blackmun found himself most often in the role of liberal dissenter. Just before leaving the court, he declared his belief that capital punishment should be finally abolished as arbitrary and unfair.

On April 7, 1994, with Clinton at his side, Blackmun announced his resignation at the White House. At age 85, he was the third-oldest justice ever to serve on the high court.

In commenting Thursday on the death of Blackmun, feminist Gloria Steinem, the co-founder and consulting editor of Ms. magazine, began her remembrance by reading from a prepared statement: “Justice Blackmun saved more women’s lives than any other person in history.”

Then she stopped reading.

“You know, that sounds so institutional. . . . He was such an extraordinary man,” Steinem said.

“Once, when I was giving a commencement address at Tufts, he was there, receiving an honorary degree. It was a huge outdoor commencement, all of their various schools, and there were acres upon acres of people. And when I said that, that this was the man who had saved more women’s lives than anyone, they all stood up and applauded, like an ocean, you know, for a long, long time.

“And he stood there with tears streaming down his face, and you had the feeling that he hadn’t realized, that he had been so inside the court, rather than out among the world, that he didn’t know how much gratitude there was there for him.

“I think after he retired, he understood that more. I certainly hope he did.”

Clinton proclaimed that flags will fly at half-staff around the United States on the day of Blackmun’s funeral. As of Thursday night, services had not been scheduled.

Times staff writer Mary McNamara contributed to this story.

Read excerpts from Justice Harry A. Blackmun’s Supreme Court opinions and hear audio versions of the Roe vs. Wade oral arguments on The Times’ Web site at: https://www.latimes.com/blackmun

* MENSCH ON THE BENCH: Alan M. Dershowitz remembers Harry A. Blackmun as remarkably open and fair-minded. B7

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Blackmun: The Man, the Message

* Education: Harvard University, summa cum laude in mathematics, 1929. Harvard Law School, 1932.

* Family: Married Dorothy “Dottie” E. Clark on June 21, 1941. Survived by widow, three daughters, several grandchildren.

* Personal: Friendship with Warren E. Burger, who later was named chief justice, began in grade school. They were referred to on the court as the “Minnesota Twins.”

* Career: Law clerk to federal appeals court judge, 1932-33; private law practice in Minneapolis, 1934-50; resident counsel for the Mayo Clinic, 1950-59; federal appeals court judge, 1959-70; Supreme Court, 1970-94.

* Interests: Baseball fan. Cameo role in the 1997 movie “Amistad” as Justice Joseph Story, who announced decision in U.S. vs. Amistad in 1841.

Here are excerpts from some of his opinions:

* Roe vs. Wade, 1973: “One’s philosophy, one’s experience, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitude toward life and family . . . are all likely to influence and color one’s thinking and conclusions about abortion. Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. A right of personal privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

* Lynch vs. Donnelly, 1984 (dissenting): “The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes but devoid of any inherent meaning. . . . The import of the court’s decision is to encourage use of the creche in a municipally sponsored display, a setting where Christians feel constrained in acknowledging its symbolic meaning and non-Christians feel alienated by its presence. Surely, this is a misuse of a sacred symbol.”

* Flood vs. Kuhn, 1972: In the fifth paragraph of the decision, which allowed major league baseball to keep its antitrust exemption, Blackmun embarked on a journey through some of the game’s most famous names--88 players, owners, managers and even umpires. “There are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversations and anticipations in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner . . . Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.”

Los Angeles Times, Associated Press