'What You Are Doing Is Reprehensible'

The role of physicians in our society is so important and special that government should usually defer to their professional judgment.

It was July 1987. I was a reporter for a newspaper covering the federal courts in Washington, D.C. It was the beginning of the highly partisan period we live in now: every Supreme Court vacancy triggered a massive battle between the left and right, Democrats and Republicans.

We received a tip about Harry Blackmun, the Supreme Court justice who authored the controversial 1973 Roe v. Wade abortion decision, which put physicians in the limelight. Blackmun was said to be ill, had unexpectedly left Washington, and would shortly announce his retirement. Another reporter and I decided to find out if the rumor was true.

We called the Court's press office.

"No, Justice Blackmun is in fine health and on a fishing vacation," we were told.

We were skeptical.

I remembered Blackmun once served as general counsel to the Mayo Clinic. If he were ill, Mayo is the place he would go, I speculated.

We called the clinic and asked for "Harry Blackmun, please."

We were startled when the operator connected us to a patient's room.

I asked myself: is it right for us to invade Justice Blackmun's privacy?

The reporter in me wanted to break a story. My more humane side wanted to hang up. But he answered. I quickly explained who I was and why I was on the telephone with him.

 "Sir," he said from his sickbed, "what you are doing is reprehensible." With great dignity, he hung up. Harry Blackmun, the patient, just wanted to be left alone. But we knew we had our story.

We wrote a brief but newsworthy piece. Justice Blackmun recovered and served another seven years on the bench. He retired in 1994 and died in 1999.

I thought about this brief encounter recently when I read that Blackmun's personal papers had been opened to the public.  

His ruling on Roe made Blackmun a hero to women's groups - an unlikely one, since he was expected to be a reliable conservative when Richard Nixon named him to the Supreme Court in 1970. But according to a new book by longtime Supreme Court reporter Linda Greenhouse, Blackmun was concerned more with the right of physicians to practice medicine unfettered by second-guessers than with women's rights.

When Greenhouse pored through Blackmun's files something caught her attention: an article in a Mayo magazine by Jane Hodgson, a Minnesota obstetrician. Hodgson had faced criminal prosecution for performing an abortion on a pregnant patient with German measles. In her article, Hodgson predicted that "someday abortion will be a humane medical service, not a felony." 

According to Greenhouse, looking back more than 30 years later, what was uppermost in the minds of the justices in Roe was maintaining the rights of physicians to execute their professional judgment. Protecting the right of women was "by proxy," she adds.

It was in subsequent cases, over the course of another 20 years, when Blackmun was further challenged to think about the rights of women, that he strongly sided with them.

Roe v. Wade remains under attack today, though it is not likely to be overturned.

But lost in the debate is the issue that was paramount for Blackmun when he wrote Roe. The role of physicians in our society is so important and special that government should usually defer to their professional judgment, even when reasonable persons would disagree.

Blackmun believed in being left alone: as a patient seeking good health, and for physicians desiring to treat their patients without interference.

The views expressed in this space are the author's, and do not necessarily reflect the views of Physicians Practice.

This article originally appeared in the June 2005 issue of Physicians Practice.