Wednesday, October 12, 2005

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705

First, I'd like to direct you to a modest proposal written by a friend of mine. I like satire.


In an effort to better understand the constitutional law in the area of abortion, I have gone through the famous decision of Roe and analyzed the arguments given. While I make no claim to have exhaustively discussed the case, I think that my analysis will help people to better understand it. This isn’t easy because the people appointed to the Supreme Court are often highly political, and even as justices they tend to carry over their training as advocates (lawyers or politicians) onto the bench and conceal the weaknesses in their arguments.

The analysis got a little long, so up front I’m going to state my conclusions. The Court’s decision necessarily depends on all of the following points, and if any one of them is incorrect then the Court overstepped its authority and Roe should be overturned:
1. The right to privacy is a basic constitutional right.
2. The right to abortion is a basic part of the right to privacy.
3. Whether the state has a compelling interest in the life of the unborn can be decided without answering the question of when life (or personhood) begins.
4. The state’s interest in protecting the life of the unborn is compelling only after the point of viability, although the state concededly has such an interest.
5. The right to abortion outweighs the state’s interest in protecting non-viable fetal life.
Every one of these points is disputable, some more than others. (It’s important to note that it’s much easier for the Court to uphold the state statutes, because they could find error in any one of these statements. Statutes are presumptively valid.) I think it’s also interesting to note the seeming extension of 4 and 5 by some courts. Under Roe alone a partial-birth abortion ban would be constitutional.

The only definite conclusion that I can come to is that this controversy can’t be resolved to the satisfaction of everyone.

If the length of my analysis is a little too intimidating (about 5,000 words), skim down to the last paragraph, where I take a quote from the late Chief Justice (then Justice) Rehnquist’s dissenting opinion. For a more in-depth analysis, read on.

The Opinion

The court begins solemnly and carefully, quoting Justice Holmes, dissenting in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905):
(The Constitution) is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

I’m going to skip the justiciability issue that Rehnquist spends much time on in his dissent, because that’s not the center of debate. Besides that, standing doctrine is too slippery and I’ll save it for my Con Law final in December.

(Note: Roe and Hallford are referred to as the appellants because they are appealing the lower court’s decision. The state of Texas is referred to as the appellee.)

Abortion in History

The Court (per Justice Blackmun) begins with a historical overview.
[Ancient attitudes] are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished. We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that 'it was resorted to without scruple.' The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.
Roe, 410 U.S. at 130. I’m not sure exactly which ancient religions he refers to. Hopefully he isn’t referring to the common Middle Eastern practice of sacrificing babies to Baal or some other god.
The [Hippocratic] Oath varies somewhat according to the particular translation, but in any translation the content is clear: 'I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,' or 'I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.'
Id at 131. Justice Blackmun notes that the Oath was not generally accepted by all people of the time of Hippocrates but that it is now the standard. It seems that the medical profession has conveniently forgotten part of the oath. Or perhaps Hippocrates was against it because at his time it was necessarily harmful to the woman.

Ancient practice is at best conflicting with regards to abortion. Therefore it is disregarded entirely in the rest of the opinion and will no longer be a subject for this discussion.

He then goes on to discuss popular ideas of when life begins.
Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide.
Id at 133, 134. The point to which he refers is the “quickening,” or the first time the fetus kicks inside the womb. There was no common law crime for aborting the fetus before the “quickening.” As to whether there was a crime after “quickening,” this point is in dispute, but if it was then it was not a firmly rooted crime. However, today most if not all states call it murder when a third person kills the fetus without the mother’s consent. (Actually, Nebraska does not follow this model because the legislature enacted an entirely separate statute for such situations.)
In 1828, New York enacted legislation that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickend fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it 'shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.'
Id at 138. He notes that the statutes in 1973 punish abortion more severely than New York’s did in 1828. But how does the severity of the penalty bear on the constitutionality of its prohibition?

Blackmun then notes the American Medical Association position, originally formed in 1859 and reaffirmed in 1871 and 1967, that abortion should be illegal unless the pregnancy threatens the mother’s life, the child would be deformed or deficient, or the pregnancy is the result of rape or incest.

The AMA disapproved of abortion. He seems to ignore this fact in the rest of his opinion, so I will too.

The Meat of the Opinion

Now Blackmun gets to the heart of the matter.
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
Id at 148. This argument is irrelevant because courts are supposed to give broad discretion to legislatures, and as Rehnquist notes in his dissent they must sustain them as long as there is any rational basis for the statute.

Premise 1: One justification for anti-abortion laws is that they promote Victorion sexual morality.
Premise 2: Promoting a certain sexual agenda is not a valid state concern.
Conclusion 1: Abortion laws cannot be sustained on the basis that they promote sexual morality.

Personally, I think this is reasonable, but note the limited conclusion that can be made. However, Premise 2 is not unquestionable, and only the right to privacy stands in its way, a right that some would like to see invalidated.
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. . . . Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy. . . . Modern medical techniques have altered this situation.
Id at 148, 149. I think most people can agree with this. If abortion were still as dangerous now as it was in the late 19th and early 20th centuries, I think there would largely be a consensus that it is within the states’ powers to prohibit abortion. Now, however, modern medical knowledge has made this a moot point (for the most part).

Premise 3: Abortion laws were enacted in part to protect women from an unsafe procedure.
Premise 4: Abortion is no longer as unsafe as it once was.
Conclusion 2: Abortion laws can’t be sustained on the basis that they protect a woman’s health.

Once again, I’m going to point to Rehnquist’s rational basis test and say that a state legislature could in fact conclude that it still protects a woman’s health, although this argument is weak because, as the Court notes, mortality for women is lower when an abortion is performed in the first trimester than when the woman carries the fetus to term.
The prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy.
Id at 150. This seems to be the center of current debate. The first sentence seems rather curious, though. I’m not sure I follow the reasoning with that one. Certainly he doesn’t mean that the prevalence of illegal abortions legitimizes the states’ prohibition of abortion. Perhaps what he means is that it increases the state’s interest in close regulation of legal abortion, at least in the early stages of pregnancy.
The third reason is the State's interest—some phrase it in terms of duty—in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to life birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
Id. So he concedes an important point:

Premise 5: States can regulate a matter as long as they have a legitimate interest in that matter.
Premise 6: A state is free to conclude that life begins at conception.
Conclusion 3: A state is free to regulate life beginning at conception.

Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.
Id at 151. Once again, I note that it doesn’t matter what their intent was as long as there exists a legitimate interest and a rational basis for expecting that the statute will protect that interest.

Blackmun gives a general overview of the cases establishing the right to privacy.
These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.
Id at 152, 153 (citations omitted). He then goes on to state in a kind of judicial fiat that the right to privacy extends to the mother’s choice to abort, supporting his contention with a list of harms that could come about from an unwanted pregnancy. He then qualifies it.
The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.
Id at 153, 154. Here, I would like to bring in Justice Rehnquist’s dissent. He states, correctly I believe, that the standard for reviewing a statute is the rational basis test. However, Blackmun has a different idea:
Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.
Id at 155 (citations omitted). This is where the two opinions collide, and I believe where Justice Blackmun errs. Back to Rehnquist:
As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be 'compelling.'
Id at 174.

Premise 7: There is a constitutional right to privacy.
Premise 8: The right to privacy extends to abortion.
Premise 9: A state statute that interferes with the right to privacy must promote a compelling state interest in order to be valid.
Conclusion 4: A state statute regulating abortion must promote a compelling state interest in order to be valid.

While I take strong issue with Premise 7, I will not today because that would take all day. Premise 8, however, needs some clarification. Blackmun gives us none, but Rehnquist’s dissent may point us in the right direction. “A transaction resulting in an operation such as this is not 'private' in the ordinary usage of that word.” Id at 172. Sorry, Mr. Justice Rehnquist, but I think that in light of the well-established patient-physician privilege, medical procedures and consultation are private. So by criticizing your opposing justices’ opinion you have given more credence to their belief than their own opinion did alone.
However, I agree with Justice Rehnquist that the test the Court uses (Premise 9) is absolutely erroneous. It might perhaps be different if the right involved were an enumerated right in the Constitution, one that is entitled to greater protection. The right to privacy is not an enumerated right—it is an implied right—and therefore should be subjected to the less stringent rational basis standard. The rational basis standard is to be applied, if I’m not mistaken, unless there is special reason to suspect a particular statute of violating a constitutional right (such as when it applies differently to members of a particular race). If the right is implied, I submit that there is no such reason. The Court gives no reason to believe that there is such a reason, although I suppose one could find it in that anti-abortion laws apply to women. The contrary position to that is that the statute only punishes the doctor, which in my mind is damning to the argument.
Rehnquist gives another reason not to believe the combination of Premises 8 and 9:
The fact that a majority of the States reflecting, after all the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.’
Id at 173. This is important because the compelling interest test is generally only applied to fundamental rights.

So, one can only accept the Court’s application of the compelling interest test if one also accepts their statement that the right to privacy extends to abortion. If you accept both of these, then you can move on to Conclusion 4.

Blackmun moves on to the question of the bounds of the state interest involved in the statute.
The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.
Id at 156, 157. Ah, now we get down to the meat of the matter. He lists the instances of the word “person” in the Constitution. “None indicates, with any assurance, that it has any possible prenatal application.” Id at 157. This is not surprising, because it seems highly unlikely that the Framers would be concerned about the infringement of the rights of a fetus. Referring to some of his examples, it seems unlikely that we could elect a fetus to Congress or that a fetus could immigrate into the country without the mother. The most interesting of these is that one definition of a “citizen” is a person born in the United States, implying that the unborn are not citizens. The argument against this observation is that they likely didn’t think about this application or that they assumed the protection of the mother’s rights would protect those of the fetus. They likely didn’t imagine that these interests would be in conflict.
Footnote 54 raises some excellent points:
When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?
For the first argument, it seems clear that there is a justification for such an exception. It is analogous to self-defense in a murder case. If X threatens the life of Y, it is perfectly reasonable to allow X to employ any means he reasonably believes to be necessary to protect himself, and I believe that every state recognizes X’s right in this regard. The exception is no different.
As for the second argument, there is also a reasonable explanation. The statute is designed to deter the physician from performing an abortion, not the mother. In addition, there may have been fears that the woman would be prosecuted when a third person (such as a husband or father) forced her to have an abortion.
The differing penalties argument is also weak, because states have always been free to define murder how they want. That is why murder is separated into 1st and 2nd degrees as well as manslaughter. These refer to the culpability of the perpetrator, and it seems reasonable to see the performer of an abortion as less culpable than one who kills an infant that has been born.

And so Justice Blackmun moves on to the famous balancing argument:
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. . . . As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
Id at 159. He admits that the state can decide whether to protect fetal interests, and at what point to begin such protections, implying that states are competent to make such decisions. He qualifies this power (and competence) in later parts of the opinion by stating that this power must be exercised within certain constitutional bounds.

He makes a rather wise decision:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
Id. I believe if he hadn’t exercised such restraint, the venerable Court would have been subjected to an even greater degree of criticism for making a decision which they are absolutely not qualified or empowered to do.

Instead, he discusses the rights of the unborn.
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before [live] birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon [live] birth.
Id at 161. At first blush he seems correct in this regard. Tort law, for example, generally gives a cause of action to the parents when an injury results in death of the fetus, but doesn’t give a cause of action to the estate of the unborn. In fact, the law never recognizes an estate of the unborn. But perhaps this is because damages for the fetus itself would be exorbitant or difficult to determine. The Rule Against Perpetuities, in property law, waits for a gestation period after the death of the father to see if any child is born, but here again the fetus has no rights unless it is actually born. This could be argued instead as a rule of convenience, because the fetus obviously has no offspring to which they can pass their inheritance, so their interest instead would generally be passed on to would-be siblings or other next of kin (in essence making the recognition of their rights usually irrelevant). In fact, the rule does recognize rights of the unborn as contingent rights that merely become vested rights at birth, so perhaps Blackmun isn’t entirely correct on this point.

The law usually does not recognize the rights of the unborn. I’m not sure what is the significance of this premise. It seems unnecessary to the final conclusion that the Court reaches. Instead, like the historical discussion, it seems intended to make that final conclusion a little easier to swallow. Perhaps both of these discussions are intended not to promote the Court’s holding but to rebut the arguments against that holding. In any case it is a debatable, but certainly defensible position, as the above discussion makes clear.

Blackmun reasons that because the mortality for abortions during the first trimester is lower than that for actual live births, the state’s interest in regulating abortion is limited (licensure, etc.). This seems not to add anything new, but instead to go back to Premise 3 and Conclusion 2.
With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Id at 163, 164. This I find problematic. The opinion seems to jump to this conclusion as a policy judgment rather than based on any particular constitutional principle. In support of the argument, he says it is “so” by defining the term itself, thereby committing the logical fallacy of begging the question.

Premise 10: The state’s interest in protecting unborn life does not become compelling until viability.

Like I just noted, however, this premise begs the question. If one accepts it, it leads to the following conclusion:

Conclusion 5: The state’s interest in protecting non-viable unborn life is not compelling.

A Condensed Formulation of the Court’s Argument

Laid out another way, this is how the Court’s argument goes:

Premise 5: States can regulate a matter as long as they have a legitimate interest in that matter.
Premise 6: A state is free to conclude that life begins at conception.
Conclusion 3: A state is free to regulate life beginning at conception.
Premise 7: There is a constitutional right to privacy.
Premise 8: The right to privacy extends to abortion.
Premise 9: A state statute that interferes with the right to privacy must promote a compelling state interest in order to be valid.
Conclusion 4: A state statute regulating abortion must promote a compelling state interest in order to be valid.
Premise 10: The state’s interest in protecting unborn life does not become compelling until viability.
Conclusion 5: The state’s interest in protecting non-viable unborn life is not compelling.
Conclusion 1: Abortion laws cannot be sustained on the basis that they promote sexual morality.
Conclusion 2: Abortion laws can’t be sustained on the basis that they protect a woman’s health.
Premise 11: All possible compelling state interests have been raised at trial.
(This is a necessary consequence of the way in which courts normally decide issues, although it wouldn’t be as important to raise every issue under the rational basis test.)
Conclusion 6: Although a state is free to regulate life beginning at conception, the state’s interest is not compelling when compared to a woman’s right to privacy.

Final Conclusion: State statutes that prohibit abortion of a non-viable fetus are unconstitutional.

Problem Areas in the Court’s Argument

As we have seen, Premise 8 is at least suspect. Premises 8 and 9 are actually conclusions (although the Court treats them as premises) and should actually be broken down a bit:
1. Normally statutes are constitutional if the legislature has a rational basis for the statute.
2. Statutes are subjected to strict scrutiny when they infringe on a basic constitutional right.
3. A statute subject to strict scrutiny is valid only
a. If there is a compelling state interest
b. That compelling state interest outweighs the interests protected by the constitutional right
4. The right to privacy is a basic constitutional right.
5. The right to abortion is a basic right inherent in the right to privacy.
6. THEREFORE, a statute that regulates abortion is valid only if there is a compelling state interest that overrides the woman’s interest in choosing abortion.
Wow. Four and five, as we have seen, are at the very least questionable. Therefore Premises 8 and 9 are questionable. If any of these statements are not true, the Court’s holding falls apart. (As a side note, 3.b. is treated as implicit in 3.a. by the courts, but I find it useful to separate the two.)

In addition, Premise 10 is questionable, as we have seen. In fact, I suspect that if the Court had inquired into when life actually begins they would have been forced to say that they can make no conclusions as to this, and would then be forced to decide the case the other way. Even assuming that this question can be avoided, as the Court does, viability is still an arbitrary point at which to begin the state’s compelling interest, and the opinion begs the question as to the propriety of this statement.

Finally, Conclusion 6 is partly a premise that is necessarily a judgment call. How easy is it to decide which interest outweighs the other interest? Once again, if it were to be concluded the other way, then the holding falls apart.

Given all of this, personally I would conclude that the Court erred in its decision and the question should be left to the states. This does not, however, compel the conclusion that abortion should be illegal (see my post, More on Abortion). If you accept all of the questionable premises I laid out above, then I hope that you have benefited from reading my analysis. As I stated before, the one thing that is clear is that this controversy can’t be easily pushed aside.

That said, I leave you with a portion of Rehnquist’s dissent.
The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.
Id at 173.


  1. "Sorry, Mr. Justice Rehnquist, but I think that in light of the well-established patient-physician privilege, medical procedures and consultation are private."

    Wait . . . does that really work? Because if so, there's, um, a whole heck of a lot of laws that infringe on that privacy. Patient-Physician relations are heavily regulated, in terms of what kinds of drugs may be administered, what kinds of procedures may be performed (and with whose consent), what kinds of tools the doctor may (or must!) use, what kinds of disclosures the doctor needs to make, etc.

    The privacy in the patient-physician relationship is only a privacy governing the physician's disclosure of information the patient gives the doctor in confidence, no? Not a general bar against state interference.

  2. True, true. I'm not really sure about the right to privacy, but I would say that what happens between a doctor and patient is private. However, that's exactly one of the problems with the "right" to privacy: it's ill-defined and can be used however they want to use it.
    I don't know if that changes the analysis. I think that if there is a right to privacy, then it would be hard to argue that the reasons for an abortion decision are not part of that. No states had a categorical prohibition of abortion, but merely a law that prohibited abortion for most reasons. Whether or not those reasons exist is arguably a constitutionally-protected private matter. Arguably. I, personally, wouldn't buy that argument because then arguably whether a patient needs narcotic patches is arguably private, and you can see where that goes.
    Thanks for pointing out a bigger hole in Blackmun's opinion. Let's see if we can find more.