News & Reviews

Issue: "Alan Keyes: Can he win?," March 13, 1999

Blackmun, author of roe vs. wade, dies at 90
But his legacy lives
On the eve of the 10th anniversary of his most famous legal ruling, 72-year-old Harry Blackmun sat for an interview with a journalist and waxed philosophical about his place in history: "Author of the abortion decision," he repeated, slowly and softly. "We all pick up tabs. I'll carry this one to my grave." Last week the former Supreme Court justice went to his grave at age 90. By "this one," Mr. Blackmun was referring to his authorship of the 1973 Roe vs. Wade ruling that overturned the abortion laws of all 50 states and helped fuel the cultural war that rages to this day. Mr. Blackmun moved steadily leftward during his tenure on the Supreme Court. Appointed by President Nixon in 1970, he was considered a conservative who would interpret laws instead of legislating from the bench. But by the end of his career, court watchers considered Mr. Blackmun one of the Supreme Court's most reliably liberal votes. He almost didn't make it onto the court. Mr. Nixon nominated him only after the Senate rejected his first two choices to fill departing Justice Abe Fortas's seat. Mr. Blackmun was a boyhood friend of former Chief Justice Warren Burger in Minnesota, and was the best man in Mr. Burger's 1933 wedding. Early in his Supreme Court career, legal scholars called Mr. Blackmun the "Minnesota Twin" for his reliance on Mr. Burger, but differences strained their boyhood ties as Mr. Blackmun drifted leftward. As he grew older, Mr. Blackmun worried openly about the direction of the Supreme Court. In 1990, he told a reporter that he was one of the high court's three "old goats." (Fellow liberal Justices William J. Brennan and Thurgood Marshall were also in their 80s at the time.) "It seems to me that before too long the court could be nine conservatives, and that surely will last into the next century," he said. But he rejoiced in 1992 when the court strengthened the abortion right in Casey vs. Planned Parenthood. "Just when so many expected the darkness to fall, the flame has grown bright," he wrote in his concurring opinion. He called abortion one of the "fundamental liberties that are not to be left to the whims of an election." Even those whims went his way with the election of Bill Clinton, who appointed lockstep liberals Stephen Breyer (to replace Mr. Blackmun in 1994) and Ruth Bader Ginsburg, fortifying a liberal bloc that includes Bush appointee David Souter. Despite all of his worries, Mr. Blackmun's legacy seems safe. But for that very reason, many unborn children are not. remembering blackmun
In their own words
"It is a tragedy for someone to go to his grave best remembered for denying unborn children the most basic civil liberty-the right to life."
-David O'Steen, executive director, National Right to Life Committee "With the death of Justice Harry Blackmun, America has lost a great humanitarian-a true 20th-century hero who will be remembered well into the next millennium. Although Justice Blackmun's distinguished career had far greater impact than one decision alone, it is Roe vs. Wade ... that will be indelibly associated with his name."
-Gloria Feldt, president, Planned Parenthood Federation of America "We have a special connection to Justice Blackmun. For the past six years, we have honored outstanding pro-choice individuals and organizations with the Justice Harry A. Blackmun Reproductive Freedom Award."
-Dorothy Mann, executive director, Family Planning Council "This man managed to move the words of the Constitution far enough ... [to find] the right to abortion."
-Janet Parshall, national advocate, Family Research Council "Today Mr. Blackmun's knee is bowing before the court that truly is supreme."
-Flip Benham, national director, Operation Rescue religious liberty set back at least 15 yards
Flag on the play
Football games are simply not "solemn" enough to be kicked off with a student-led prayer. Or so said two of three federal appeals judges last week in a case from Texas. Perhaps underestimating how seriously Texans take high-school football, Judge Jacques Wiener wrote for the majority of the 5th U.S. Circuit Court of Appeals that football games are "hardly the sober type of annual event that can be appropriately solemnized with prayer." Without the requisite solemnity, the court held, the prayers are unconstitutional. Before you grab your pocket copy of the Constitution: "Solemnity" is not mentioned in the First Amendment. This ruling arises from the Supreme Court's current guiding principles of adjudicating church-state matters: Expressions of religiosity on public property must meet three conditions in order to pass "constitutional" muster, and one of them is that they must have a "secular purpose." It's the "Lemon test," created by the Supreme Court in a 1971 case, Lemon vs. Kurtzman. Subsequently, federal courts have held that bland prayers at graduation ceremonies meet the "secular purpose" standard because they "solemnize" the events. Last week's case focused on the Santa Fe Independent School District, near Houston, which wanted to allow prayers before football games and also wanted to allow students to refer to Jesus at graduation ceremonies. Two parents sued in 1995, claiming such prayers violated the "separation of church and state." Lawyers for the American Civil Liberties Union threw the key blocks that moved the lawsuit up the field. The ACLU saw "a pattern and practice of advancing Christianity by Santa Fe I.S.D., in violation of the First Amendment." The court agreed. Touchdown! Might this play be called back? Religious liberty advocates believe they have a strong case: "The government has no right to control the content of our children's prayers," said Kelly Shackelford, chief counsel for the Liberty Legal Institute. "The decision is wrong, flat wrong and extremely dangerous." The one dissenting judge in the case lamented the precedent, if allowed to stand. "Today, for the first time in our court's history, the majority expressly exerts control over the content of its citizens' prayers," 5th Circuit Appeals Judge Grady Jolly wrote. Nevertheless, the court's decision is a setback to those who promoted student-led prayers as an alternative to the teacher-led prayers banned by the Supreme Court since 1962. A similar decision was handed down two years ago, when U.S. District Judge Ira DeMent struck down an Alabama law that allowed "nonsectarian, nonproselytizing, student-initiated, voluntary prayers" at all school-related events. The Supreme Court refused to consider an appeal in that case. The no-comment zone

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