Justice Blackmun and legal abortion--a besieged legacy to women's reproductive health.

Abstract

Justice Harry A. Blackmuns 24-year tenure on the Supreme Court ended in 1994. Justice Blackmun probably will be best remembered for writing the majority opinion in Roe vs. Wade (HO US 113 1973). This landmark decision together with its companion decision of Doe vs. Bolton (410 US 179 1973) declared restrictive state abortion laws unconstitutional. However the same Supreme Court decisions that had permitted public health advances in the 1970s were challenged in the 1980s and then supplanted in the 1990s. The trimester-threshold model which underlay both Roe vs. Wade and Doe vs. Bolton had its foundations in medicine and not in the US Constitution. At the time few of the elated pro-choice advocates foresaw the implications of these rulings for the delivery of reproductive health care in the 1980s and 1990s. The increased availability of legal abortion in the United States in the 1970s also improved both the safety of abortion methods and the skill of physicians performing abortions. For example clinicians recognized that dilatation and evacuation could terminate pregnancies at 13 weeks gestation or later more safely than intrauterine instillation methods; thus the rigid trimester-threshold concept became irrelevant. Because Roe vs. Wade had expressly allowed regulation of the conditions under which abortion could be performed states were in effect invited to draft new rules to guide medical practice. These regulations took several forms requiring 1) parental consent or notification 2) spousal consent or notification 3) written informed consent 4) 24-hour waiting periods 5) counseling only about risks of the procedure and 6) bureaucratic clinic licensing. Today the trimester-threshold concept is clinically obsolete and has been judicially replaced by one of undue burden. Moreover anti-abortion violence today may threaten legal abortion to a greater extent than Blackmuns fear of judicial restriction. The recent murders of physicians and other abortion clinic employees represent the most severe terrorism by antiabortion extremists.