Nan Hunter (Brooklyn) has posted Justice Blackmun, Abortion, and the Myth of Medical Independence on SSRN. Here is the abstract:
Abstract:
This article uses Justice Blackmun’s personal papers and other primary sources to argue for a re-interpretation of how the relationship between law and medicine affected the Supreme Court’s treatment of abortion. The conventional wisdom has been that Blackmun framed the abortion right in Roe v Wade as belonging as much to the physician as to the pregnant woman largely because of his close personal identification with doctors, growing out of his experiences as resident counsel at the Mayo Clinic.
I argue that this widely-held belief has hidden a richer and more complex relationship between legal and medical discourse. Both in Roe and in the earlier case of United States v. Vuitch, the Court constructed medicine as a mythically independent, parallel realm to the state. In the early abortion cases, the Court was engaged in a delegation of power, a move designed not so much to shield physicians from prosecution as to enlist them in regulation.