Roe v. Wade: Was Another Concern on the Justice’s Mind?

By Ken Feltman
 
Shortly after he had retired from the U.S. Supreme Court, Justice Harry Blackmun and his wife, Dorothy, joined another couple and 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.”
 
Despite his preference for the continuity of the law, Blackmun’s opinion took the issue away from the states, out of the jurisdiction of the courts in the 50 states, and federalized the right of privacy. Was Blackmun haunted by the rumors that were prevalent in government and the media in Washington during President Richard Nixon’s reelection campaign? Even then, people talked openly of how Nixon’s paranoia – discussed and written about beginning nearly two decades before Nixon became president – could have motivated Nixon or his closest supporters to plan and eventually attempt to cover up the Watergate burglary.    
 
Nixon appointed Blackmun to the Supreme Court in April 1970. Blackmun was confirmed 94-0 the next month. He was Nixon’s fourth choice. Lewis F. Powell turned down an appointment (he later accepted nomination to the Court). The contentious battles over the failed nominations of Clement Haynsworth and Harold Carswell followed. Both Nixon and the Senate were weary of the bitterness and Blackmun’s nomination was welcomed by the Senate.
 
Roe was initially argued before the Supreme Court in December 1971. The case was reargued on October 11, 1972, a few weeks before Nixon’s reelection on November 7, 1972. The decision was announced on January 22, 1973.
 
Blackmun told us during the dinner that he recognized that the extension of the right of privacy would be analyzed and interpreted in many ways, some intended, some not. Then he said something that echoes in my memory. Slowly, as if reconsidering every word before saying it, 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 recalled Blackmun’s slow and serious words that evening as I wonder whether and how much Watergate influenced Roe v. Wade.

About Radnor Reports

Ken Feltman is past-president of the International Association of Political Consultants and the American League of Lobbyists. He is retired chairman of Radnor Inc., an international political consulting and government relations firm in Washington, D.C. Know as a coalition builder, he has participated in election campaigns and legislative efforts in the United States and several other countries.
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