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A different kind of abortion anniversary: 45 years ago today Harry Blackmun confirmed as a justice of the Supreme Court

by | May 12, 2015

By Dave Andrusko

Justice Harry Blackmun

Justice Harry Blackmun

Each January 22 pro-lifers commemorate the anniversary of one of the darkest day in American jurisprudence: the day, in 1973, when the Supreme Court handed down its infamous tandem decisions of Roe v. Wade and Doe v. Bolton.

Today is a different kind of anniversary. It was 45 years ago that the Senate voted unanimously to confirm Harry Blackmun as a Supreme Court justice.

At the time Blackmun was dismissed as the decidedly junior half of the “Minnesota Twins.” (Both Blackmun and Chief Justice Warren Berger hailed from my home state.) Although they remained lifelong friends, it wasn’t long before Blackmun was complaining about Berger. If Berger initially thought Blackmun would be a loyal lieutenant, that hope/wish/prediction did not last.

We’ve discussed many times how Blackmun channeled the zaniest arguments of the Abortion Lobby in order to foist upon us the catastrophe that is Roe/Doe. In “Refuting the Myths of Abortion History,” Susan Wills. Ph.D., wrote

“Truth matters. The entire edifice of U.S. abortion law is constructed on lies and deceptions–lies about when life begins, the scope of ‘privacy’ in the Constitution, the meaning of the Ninth and Fourteenth Amendments, about applicable (but ignored) precedents, and, significantly, about the history of abortion law and practice.”

Obviously, pro-abortionists had Blackmun’s ear (as they did a number of other justices whose previously underappreciated role in shaping the decisions has been the subject of a lot of scholarly attention). Thanks to Professor Justin Dyer ’s book, “ Slavery, Abortion, and the Politics of Constitutional Meaning “ and an article he posted on National Review, we know a lot more about the deception that is at the heart of Roe.

In his National Review post, Dyer vetted two relatively new books which rely on the orthodox pro-abortion history written by New York Law school Professor Cyril Means. (By the way, Prof. Joseph Dellapenna just eviscerates Means’s nonsense at “Abortion History Myths: The Sequel.”)

Means, as Dyer notes, was counsel for the National Association for the Repeal of Abortion Laws (NARAL), “who took the lead in drafting the new abortion history in the 1960s.” That took the particular form of a 1968 article published in the New York Law Forum.

The gist of what was then the “new abortion history” is that abortion was “(1) a common-law liberty at the time of the American founding and (2) the primary purpose of anti-abortion laws in the 19th century was to protect women rather than the lives of unborn children.” Neither was true, as most objective observers know.

I thought I knew the background pretty well—the role Means’ arguments made (Blackmun cited his work a whopping seven times in Roe). What I didn’t know until I read Dyer is that the team pushing to overturn the abortion laws, lead by Sarah Weddington, likely also knew that Means was grinding out propaganda, not accurately recording history. Dyer writes

“The problem (as Weddington almost certainly knew) is that Means’s central claims were not true. In a memo circulated among Roe’s legal team in the summer of 1971, a Yale law student named David Tundermann warned that Means’s ‘conclusions sometimes strain credibility.’”

What really rocks you is what (as Dyer described it) “Tundermann tellingly concluded”

“Where the important thing to do is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work out, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until the courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals .”

Here is Dyer’s conclusion:

“The suggestion — still made today by credentialed historians, legal scholars, and respected journalists — that protecting the lives of the unborn was not the purpose of the abortion statutes overturned by the Supreme Court in 1973 is absurd. Although the role of history in abortion litigation has quietly faded to the background in the Court’s most recent abortion cases, it bears noting that the politically motivated abortion history crudely constructed by activists and academics in the 1960s and 1970s has enjoyed a remarkable shelf life. Forty years after Roe v. Wade, as we debate the legacy of the decision and consider the state of abortion politics, it is time to lay to rest this fraudulent history — a history that would be far less tragic if it did not involve matters of life and death.”

Take the time to read Dyer’s post.  He does a great job of demonstrating how this bogus narrative has been carefully nurtured by scholars who should have—or could have—known better.

Categories: Supreme Court