A conversation about abortion between Justice Blackmun and the Founding Fathers.

• Author: Ostler, Duane L.
• Position: US Supreme Court Justice Harry Blackmun

It is dark at Independence Hall in Philadelphia. The historic scene where the U.S. Constitution was hammered out in the hot summer of 1787 is completely still; the chairs empty, the hall silent. The only movement in the stuffy hall is that of a cockroach scavenging for nonexistent food along the periphery of the hall, whose presence would no doubt cause the janitor to be fired for not using enough insect spray.

But hark! A sudden ghostly shadow has appeared at the President's chair! Its misty shape has an uncanny resemblance to none other than George Washington, minus his ivory teeth (since ghosts don't eat). Appearing not far to his left is James Madison, proficient note taker in the 1787 Constitutional Convention, who once more spreads out his notes, ready for action. The ghosts of other luminaries also make their entrance into the hall. There is Benjamin Franklin, his pockets full of kite string in case of a lightning storm; Thomas Jefferson, lugging the newest student enrollment list of the University of Virginia; John Adams, with a sheet of paper and pen, ready to write a quick note to Abigail about tonight's ghostly proceedings; Alexander Hamilton, carrying a wad of new ten dollar bills which he fondles deliciously. Other founders file silently into the hall, taking seats without pulling them out from the tables they face, so that their insubstantive frames are partly buried in the tables in front of them.

Last of all, another ghost arrives. However, his ghostly personage is not clad in the knee breeches and wigs worn by the other ghosts in the hall. He arrives wearing a tie and a long black robe. He wears glasses and has the appearance of being a kindly old grandfather. He is Justice Harry Blackmun.

"Gentlemen," begins President Washington, looking dispassionately on the assemblage. "We are here today to discuss abortion in America. This is not a court and we will not pass judgment. It is a discussion only." Turning toward Blackmun, he nods his head slightly. "We will commence by allowing Mr. Justice Blackmun to present his support for the Roe v. Wade decision he penned, which continues to be the primary abortion case in America. (1) You may proceed, sir."

Blackmun's ghost clears his nonexistent throat. "Distinguished founders," he says in his mild voice, "I thank you for this opportunity to present Roe v. Wade to you. As I stated in my opinion, my hope and my purpose in that case '[was] to resolve the issue of abortion by constitutional measurement, free of emotion and predilection.'" (2)

"Excuse me sir," interposes Mr. Madison from his chair. "I have been reading your subsequent decision in the 1989 case of Webster v. Reproductive Health Services in which your opinion in Roe was somewhat modified in ways you did not approve. (3) You asserted that in doing so the majority had been deceptive, (4) had engaged in a tortured effort to defend its position, (5) that their reasoning was unadulterated nonsense, (6) and that they were cowardly. (7) Are you asserting that such statements uttered when you were no longer safely on the side of the majority were free of emotion or predilection?"

"Yes, well ..." mumbled Blackmun incoherently. "Let me continue and I'm sure the import of my opinion will become clear. What was at issue in Roe was a Texas law which stated that if anyone administered a drug or other means to a woman to procure an abortion, he or she could be imprisoned." (8)

"I am impressed with this new State of Texas," said Alexander Hamilton, rising to his feet. A crisp, new ten dollar bill was pinned to his outer cloak. "This law sounds almost the same as the 1716 law of my home City of New York, which made it illegal for a midwife or anyone attending a pregnant woman to 'administer any herb medicine or potion or any other thing to any woman being with child whereby she should destroy or miscarry."' (9)

Blackmun's eyes bulged at the revelation of this law that predated his Roe opinion by 257 years. "Are you quite sure of that law?" he said testily. "After all, I asserted in my opinion that 'the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws ... are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.' (10) I further stated that America's first antiabortion law was passed in Connecticut in 1821. (11) Because of this I concluded that 'at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.'" (12)

Several of the founding ghosts had jumped to their feet. "If I may correct the misguided gentleman," said Benjamin Franklin, "I indicated as early as 1728 through a fictional character I created that abortion was intolerable in American society. When Samuel Keimer had the audacity to publish a short article about abortion in his newspaper, I responded with an opposition by my fictional character 'Celia Shortface' who expressed outrage against Keimer that 'thou would have printed such things ... as would make all the modest and virtuous women in Pennsylvania ashamed!"' (13)

"And I wish to assure you sir, that the 1716 law I referred to is genuine," said Mr. Hamilton. "Indeed, this law was similar to others enacted in England as early as 1512." (14) Blackmun's eyes bulged some more.

"And I also rise to assure you sir," interposed Mr. Madison, "that you are greatly mistaken if you believe abortion was not viewed with disfavor at the time of the adoption of our Constitution. I have been perusing your opinion in Roe, and note that the claimant was a single, unmarried woman who was great with child. (15) This precise situation was covered in our day by what were known as the concealment statutes in many of the colonies, intended to protect the mysterious deaths of bastard children found dead, regardless of whether their death was induced prior to or after their birth. In other words, these laws covered both abortion and infanticide. Indeed, these laws were patterned after a 1623 Act of Parliament entitled 'An Act to Prevent the Destroying and Murdering of Bastard Children.'" (16)

Blackmun's eyes were now bulging so much they threatened to pop off his glasses. "Indeed," exclaimed Alexander Hamilton, "I was against a proposed revision to just such a concealment law in New York in 1787. However, my opposition was not a support of abortion but rather an objection that the law could unfairly penalize women with a legitimate stillbirth, rather than targeting women who intentionally aborted their children. The law provided for a murder charge for 'women who clandestinely were delivered of children and the same die, or be born dead,' and required that in order to avoid the charge 'the mother within one month thereafter, should before a magistrate be obliged to produce one witness at least, to prove that the child was not murdered; and in default of the same, to be deemed guilty of murder.' (17) This law unfairly reversed the presumption that a person is innocent until proven guilty, and 'the operation of this law compelled her to publish her shame to the world' in order to avoid a conviction. In my comments to the New York legislature on this law I 'expatiated feelingly on the delicate situation it placed an unfortunate woman in, who might by accident be delivered stillborn.'...