Hunter on Blackmun, Abortion, and the Myth of Medical Independence

Nan Hunter, Brooklyn Law School, has just posted a new paper on SSRN: Justice Blackmun, Abortion, and the Myth of Medical Independence. Here's the Abstract:

This article uses Justice Blackmun's personal papers and other primary sources to argue for a re-interpretation of how the relationship between law and medicine affected the Supreme Court's treatment of abortion. The conventional wisdom has been that Blackmun framed the abortion right in Roe v Wade as belonging as much to the physician as to the pregnant woman largely because of his close personal identification with doctors, growing out of his experiences as resident counsel at the Mayo Clinic.

I argue that this widely-held belief has hidden a richer and more complex relationship between legal and medical discourse. Both in Roe and in the earlier case of United States v. Vuitch, the Court constructed medicine as a mythically independent, parallel realm to the state. In the early abortion cases, the Court was engaged in a delegation of power, a move designed not so much to shield physicians from prosecution as to enlist them in regulation.

Privileging Blackmun's authorship and thus tying Roe so closely to Blackmun overestimates his role in crafting the contours of the privacy right. In Roe, Justice Blackmun functioned in large part as a broker between Justice Douglas, who was as attracted as Blackmun to physician control, and Justice Brennan, who pressed for an autonomy framework that vested the right to decide solely in the woman. Blackmun's recently opened papers demonstrate that he was a moderating force among the Justices, seeking at every turn to narrow the decision while still commanding a court, an instinct that he also displayed in Vuitch.

The conventional approach also underestimates Justice Blackmun, by reading Roe as fueled by a parochial allegiance to medical institutions. Blackmun did admire the professionalism that he had witnessed at Mayo, but he was pragmatic in his approach to adjudicating cases related to medical practice. He was also well aware that medicine was a business: the bulk of his time at Mayo was spent on tax, corporate, real estate, and licensing issues.

After Roe, physicians providing abortions proved to be unreliable partners in the regulation of sexual and procreative norms because they eschewed the paternalistic role carved out for them. An increasingly conservative Court used cutbacks in deference to medical authority as a rhetorical mechanism for weakening the abortion right. This back and forth renegotiation of juridical and medical authority had a far more powerful impact than the influence of Justice Blackmun's years at Mayo.