The following is an exclusive excerpt from Subverted: How I Helped The Sexual Revolution Revolution Hijack The Women’s Movement, available now.
To the ordinary American, the National Organization for Women’s newfound claim that sex without the kids will set you free was a completely foreign concept. The Bolsheviks had legalized abortion on demand in Russia in 1920. But nothing of that sort had ever happened in the United States.
Perhaps no one in 1971 was more perplexed by women’s cries for abortion on demand than Richard Nixon’s latest appointee to the U.S. Supreme Court. In his early sixties, salt-and-pepper haired and married with three grown daughters, Harry Blackmun was a churchgoing Methodist, steady and reliable. He had grown up in a working-class neighborhood in Saint Paul, Minnesota, the son of a father who struggled to make ends meet by wholesaling fruits and vegetables, a business that eventually failed. Harry wrote in his diary, “Never can I remember a time when Dad was ever a step ahead of the world; he was always worrying and stewing about when he should get the instant batch of bills paid off.”
Talented as an orator, Harry won a scholarship to Harvard at age sixteen, but separating from home for him had been tough. The night before he left for his sophomore year at Harvard, both he and his mother Theo wept. In his diary, he wrote that “parting with the best home folks available and with one’s greatest pals in the world, was one darn hard job.”
Harry worked his way through college and, even years later as a Supreme Court Justice, typically took a full briefcase of work home after putting in a twelve-hour day. When his daughters were small, he would cuddle them in the rocking chair and sing what one of his daughters called “deeply comforting songs” like “Toora-loora-loora.”He was a loyal Harvard man, but his favorite piece of music was the Yale “Whiffenpoof Song”: “We’re poor little lambs who have lost our way.” He was certainly not the sort of man to advocate “sex-without-the-kids” as the ultimate path to anyone’s freedom.
So how did Republican Harry Blackmun (by all accounts a loving son, devoted husband, and good dad) wind up writing the Supreme Court opinions that legalized abortion throughout the nation?
To put it mildly, it wasn’t easy for Harry. The assignment to write the opinions for Roe v. Wade and its companion case Doe v. Bolton had fallen on Harry by surprise. Chief Justice Warren Burger assigned him the task of writing the opinions even though Harry’s craftsmanship lacked finesse and he was “by far the slowest writer on the Court.”
What’s more, Burger believed the Justices’ votes on the abortion cases in the closed-door conference after oral arguments had been too close to call and the Court’s final decision would “stand or fall on the writing” of Blackmun’s opinions. Further, Harry thought the oral arguments in Roe had been weak. To write an opinion that would sway his colleagues, he believed he needed a lot more facts, information, and insights than attorneys on either side of the case had provided.
Harry Seeks Guidance
To sort out the abortion mess, the first person Harry turned to for help was his old friend Tom Keys, head of the Mayo Clinic Medical Library in Rochester, Minnesota. Blackmun had spent nine of the best years of his life working at Mayo as a “doctor’s attorney.” Tom immediately rallied his library staff and began sending Harry articles on the Hippocratic oath and abortion history.
Harry also sought advice from the women in his family. One night when he was having dinner with his wife Dottie and their three daughters, he asked the women around the table what they thought of abortion. When he received four radically different answers, New York Times journalist Linda Greenhouse reports in Becoming Harry Blackmun, Harry put down his fork mid-bite, pushed back his chair, and said, “I think I’ll go lie down. I’m getting a headache.”
Although Harry claimed to be unsure of his wife’s position on abortion, Dottie told one of his law clerks (a young male attorney who favored laissez-faire abortion) that she was doing everything she could to further the cause. “You and I are working on the same thing,” she told the law clerk. “Me at home and you at work.”
To write his opinions, Harry retired to the Justices’ second-floor library, where he spent most of his waking hours in silent solitude, laboriously working at a long mahogany desk. Months passed. As the winter snows melted into spring and D.C.’s cherry blossoms burst into bloom, Harry remained squirreled away in the library.
When at last in mid-May Harry showed a draft of his Roe opinion for the first time to one of his politically leftist law clerks, the clerk claimed to be “astonished” the draft was so crudely written
and poorly organized. When he circulated the draft on May 18, 1972, to the other justices, Harry’s more liberal colleagues on the bench—Justices William Douglas, William Brennan, and Thurgood Marshall—were disappointed, whereas conservative Justice Byron White strongly dissented.
Why were Douglas and Marshall so disappointed? Catholic feminist Mary Meehan suggests one possible reason. Meehan reports, “Justices Douglas and Marshall had been lacking in sexual restraint—to put it mildly—well before the ’60s, and the problems of both were aggravated at times by heavy drinking. Perhaps they realized that legal abortion could be extremely helpful to men—enabling them to escape paternity suits, years of child support, social embarrassment, and the wrath of betrayed wives. But none of this, of course, would be mentioned in the Court’s opinions.” Meehan reports that in 1961 Justice Douglas had also written to Population Bomb pamphleteer Hugh Moore (wealthy inventor of the Dixie Cup and a fierce advocate of population control), saying, “I have seen some of the literature . . . all of which I thought was excellent.”
In any case, when Harry failed to produce a competent pro-abortion draft of his opinions, he got flak from his colleagues. Having vowed to do his best “to arrive at something which would command a court,”11 Harry withdrew the draft, asking that all copies be returned to him. He planned to do more work on his opinions over the summer. In late July 1972, Harry flew to Rochester to immerse himself in research at the Mayo Clinic medical library. Meanwhile, his politically liberal, $15,000-a-year law clerk George Frampton Jr., age twenty-eight, volunteered to stay in Washington until early August to help research and draft the opinions. The two talked by phone almost daily.
An Unexpected Guide Appears
An early draft Harry wrote on the history of abortion in his small, cramped longhand reveals he was still struggling. Writing is difficult, and Harry wasn’t much of a writer. On the subject of abortion, Harry was finding it hard to think clearly. Young George, on the other hand, was an excellent writer. He’d graduated from Harvard Law School in 1969 (where he was managing editor of the Harvard Law Review), and he had at his fingertips an extraordinarily handy resource—a highly persuasive book entitled Abortion: The first authoritative and documented report on the laws and practices governing abortion in the U.S. and around the world, and how—for the sake of women everywhere—they can and must be reformed. It was written by Lawrence Lader, a Harvard-educated magazine writer who became the co-founder of the National Association for the Repeal of Abortion Laws (now called NARAL Pro-Choice America). Lader’s book, a masterpiece of propaganda containing many half-truths and some outright lies, supplied much of the historic background Blackmun’s opinion had previously lacked. But more important, Lader’s book provided a coherent form or template that tied together the many disconnected fragments of thought that had previously kept Blackmun’s abortion opinions from working. In all-new sections on the history of abortion written by George and dated August 10, 1972, Lader’s book suddenly appears in the footnotes for the first time.
In a lengthy five-page, single-spaced letter, typed on legal-size paper, which he sent to Harry along with the draft, George made an unusual suggestion. He suggested that Harry consider circulating this new draft before it was cite-checked by a clerk. Cite-checking is detailed fact-checking to ensure that a judicial decision is sound. Why would a junior law clerk suggest circulating a draft that hadn’t been cite-checked?
George was eager for Harry to circulate his draft before oral arguments were reheard in October—for three reasons: He wrote that circulating the revised draft before oral argument would “nail down [Blackmun’s] keeping the assignment,” “should influence questions and thinking at oral argument,” and “might well influence voting.” Though George stated he would not recommend delayed cite-checking “as standard operating procedure,” he thought that in this particular case the benefits strongly outweighed the disadvantages.
We don’t know when or even if the history section in Blackmun’s abortion opinions was ever cite-checked. But we do know that if it happened, the fact-checking was faulty. For when Blackmun accepted Larry Lader, a mere magazine writer, as a reliable authority on history, philosophy, and theology, he became as a blind man following a blind guide. Despite his best efforts, Harry failed to see he had embraced a well-crafted verbal mirage, mistaking it for the truth.
Let us be very clear about what happened here. The picture that emerges from Blackmun’s papers, available for public inspection at the U.S. Library of Congress, is that of a justice who, in the words of Pulitzer Prize–winning, pro-abortion historian David J. Garrow, “ceded far too much of his judicial authority to his clerks.” It is plain from an inspection of Blackmun’s papers that his clerks made, in Garrow’s words, “historically significant and perhaps decisive contributions to Roe and Doe”—a degree of involvement Garrow calls “indefensible.”
Lader set himself up as an authority on centuries of abortion legal history and also on two millennia of Catholic teachings about abortion—and Blackmun and his clerk fell for the ruse. In the final version of the Roe v. Wade decision, Lader’s masterpiece of propaganda is cited at least seven times, and the scholarly papers of Cyril Chestnut Means (a NARAL attorney who falsified abortion legal history) are cited another seven times. Lader, of course, was just a clever wordsmith—certainly no expert on history.
And yet as the late Notre Dame theologian Father James Burtchaell observed, it is “clear in the record that Justice Blackmun was indebted for the innards of his argument to two of the major strategists of the abortion movement”—Means and Lader.
Why would anyone on a judicial body as intellectually respected and erudite as the U.S. Supreme Court give a man who was little more than a popular magazine writer such high credibility as a historian? On the one hand, perhaps no one will ever completely know. On the other hand, Jacques Ellul in his book titled Propaganda suggests the well-educated intellectual may be more vulnerable to propaganda than the common man is. “Naturally, the educated man does not believe in propaganda; he shrugs and is convinced that propaganda has no effect on him,” Ellul explains. “This is, in fact, one of his great weaknesses, and propagandists are well aware that in order to reach someone, one must first convince him that propaganda is ineffectual and not very clever. Because he is convinced of his own superiority, the intellectual is much more vulnerable than anybody else to this maneuver.”
Ellul observed that intellectuals who consider themselves to be well-informed may, in fact, be “the most vulnerable of all to modern propaganda, for three reasons: (1) they absorb the largest amount of secondhand, unverifiable information; (2) they feel a compelling need to have an opinion on every important question of our time, and thus easily succumb to opinions offered to them by propaganda on all such indigestible pieces of information; (3) they consider themselves capable of ‘judging for themselves.’”
Do Ellul’s insights explain what happened to Harry and George as they laboriously wrote and rewrote Roe v. Wade and Doe v. Bolton until they finally succumbed to a propagandist’s falsified version of history to get the job done? Maybe. Maybe not. In any case, Harry was deceived by Lader’s propaganda, six other black-robed men on the bench went along with the ruse, and the tragic result was the U.S. Supreme Court’s most controversial decision since the Dred Scott v. Sandford decision denied personhood to black Americans in 1857.
The Scholars Don’t Buy It
“The immediate academic response to Roe v. Wade,” observed New York Times reporter Linda Greenhouse, “ranged from tepid to withering.” The first critiques came from the left. In a scathing Yale Law Journal article titled “The Wages of Crying Wolf: A Comment on Roe v. Wade,” liberal law professor John Hart Ely (an abortion supporter) declared, “Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine.” The opinion “is bad,” Ely added, “. . . because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Ely’s critique was soon joined by other influential voices. “One of the most curious things about Roe,” Harvard law professor Laurence Tribe observed in Harvard Law Review, “is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
In their essay “Roe v. Wade: No Justification in History, Law, or Logic,” Americans United for Life Legal Defense Fund attorneys Dennis J. Horan and Thomas J. Balch state: “Virtually every aspect of the historical, sociological, medical, and legal arguments Justice Harry Blackmun used to support the Roe holdings has been subjected to intense scholarly criticism.”
Ironically, a year after Roe was released, Harry still wasn’t completely comfortable with the Court’s decision. Speaking in February 1974 to The Washington Post, Harry prophetically stated the Roe v. Wade ruling will be regarded “as one of the worst mistakes in the court’s history, or one of its great decisions, a turning point.”
Sue Ellen Browder is former writer for Cosmopolitan magazine and author of “Subverted: How I Helped the Sexual Revolution Hijack the Women’s Movement.”
The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.