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Law, Medicine, and Justice Blackmun
Medicolegal Issues Law, Medicine, and Justice Blackmun FRANCIS HELMINSKI, J.D.
Although three previous justices of the United States Supreme Court have had formal medical training, none has had more influence on medicine than Justice Harry A. Blackmun. Blackmun, a mathematics major at Harvard College, considered medical school but instead chose legal training. After becoming familiar with the legal work of the Mayo Clime while practicing with a Minneapolis firm, he was internal legal counsel for the clinic from 1950 to 1959. Blackmun's work contributed to the development of the clinic, especially in the establishment of Rochester Methodist Hospital. As a Supreme Court Justice, Blackmun's concern for medicine was evident in many of his judi-
cial opinions, including Roe v Wade and Regents of the University of California v Bakke. In Roe, he rested much of the constitutional foundation for legalized access to abortion on the integrity of the physicianpatient relationship. In Bakke, Blackmun contributed an opinion that recognized the responsibility of medical schools to consider racial and ethnic factors in admissions decisions to increase the diversity of the profession. Blackmun's efforts to span the gap between law and medicine will earn him a place in the history of both disciplines. {Mayo Clin Proc 1994; 69:698-699)
The United States Supreme Court has had three justices with ing instead. " Ί always wanted to be a physician. If I had it medical training. Noah H. Swayne,a (1804-1884) was ap- to do over again, I'd go to medical school,'" he said in a prenticed to a Virginia physician, but he turned to legal 1989 interview.2 Not until his final year at Harvard Law studies when his teacher died a year later. Hugo L. Blacklb School did Blackmun surrender thoughts of a medical ca( 1886-1971 ) enrolled at the Birmingham (Alabama) Medical reer.2 Blackmun returned to Minnesota and, after a judicial College, completed 2 years of the curriculum in 1 calendar clerkship, joined a Minneapolis firm, where he handled the year, but then transferred to law school. Samuel F. Miller'0 probate of the estates of Drs. Charlie and Will Mayo after (1816-1890) earned a medical degree from Transylvania their deaths in 1939. Blackmun became familiar with the University in Kentucky after submitting a thesis on cholera. medical staff at the Mayo Clinic, who in turn sent him He was a rural physician for 9 years before he left his additional legal work. In 1950, the Mayo administration practice to read law. .Despite these precedents, no other asked him to join the clinic as internal legal counsel; they justice has had a more substantial effect on medicine than considered Blackmun " 'a highly intelligent, imaginative and has Justice Harry A. Blackmun, whose 24-year term on the intense man, with superb training and experience.'"3 Court ends in 1994. BLACKMUN'S CAREER AT MAYO BLACKMUN'S EARLY CAREER Blackmun was counsel at Mayo from 1950 to 1959, an On accepting an award from the American Society of Law important period for the clinic. In 1950, Drs. Edward C. and Medicine in 1987, Blackmun remarked, " Ί acknowl- Kendall and Philip S. Hench were awarded the Nobel Prize edge that I have always had a sympathetic attitude toward the for investigations that led to the discovery of cortisone. The medical profession and for the medical mind.' "2 After being Mayo Clinic was a major center for the treatment of polio reared in St. Paul, Minnesota, Blackmun won a scholarship and a leader in the new field of open heart surgery. to Harvard College, from which he graduated in 1929 Blackmun observed medical conferences and became part of summa cum laude with a mathematics major. He considered the daily functioning of the clinic. He handled varied day-tomedical school, but for various reasons he chose legal train- day legal work, from interpreting statutes and cases to warning outsiders who misused the Mayo name for their own purposes. Perhaps his most tangible accomplishment was From the Legal Department, Mayo Clinic Rochester, Rochester, Minnesota. completing the complex legal steps to establish Rochester This article is not intended to be legal advice. Readers should consult Methodist Hospital, one of the two Mayo inpatient facilities. individual counsel for recommendations associated with any issues disA lay member of the Methodist church, Blackmun was incussed. strumental in persuading the denomination to sponsor the Address reprint requests to Mr. Francis Helminski, Legal Department, new hospital. Mayo Clinic Rochester, 200 First Street SW, Rochester, MN 55905. Mayo Clin Proc 1994; 69:698-699
698
© 1994 Mayo Foundation for Medical Education and Research
Mayo Clin Proc, July 1994, Vol 69
SUPREME COURT OPINIONS Two of Justice Blackmun's Supreme Court opinions perhaps typify his concern with the independence and social responsibility of the medical profession: Roe v Wade (1973)4 and Regents of the University of California v Bakke (1978).5 Justice Blackmun will probably be forever praised and vilified for writing the Supreme Court's opinion in Roe, a decision in which the Court by a 7 to 2 vote struck down as unconstitutional state laws that made abortion early during pregnancy a criminal offense. In the continual agitation that has occurred since Roe, the extent to which Blackmun's opinion was rooted in medical history and the integrity of the physician-patient relationship has perhaps been forgotten. The summer before Roe was announced, Blackmun "researched some of the extensive medico-legal history included in the opinion at the Plummer Library" at Mayo.2 Three-fifths of his opinion is a discussion of history and medical attitudes toward abortion. The 1970 resolution of the American Medical Association on abortion is reprinted verbatim, as is an opinion of the American Medical Association Judicial Council.4 Blackmun concluded that the decision of the Court vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention....Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.4 Rarely has the Supreme Court so explicitly based its justification for a constitutional decision on the independence of the physician. At issue in Bakke was whether an affirmative-action program at the University of California at Davis Medical School was a constitutional exercise of the power of the state of California. Concluding that it was, Justice Blackmun's concurring opinion addressed the paucity of minority physicians:
LAW, MEDICINE, AND JUSTICE BLACKMUN
699
Conceding that the "number of qualified, indeed highly qualified, applicants for admission to existing medical schools in the United States far exceeds the number of places available,"5 Blackmun noted that universities "have always used geography, athletic ability, anticipated financial largess, alumni pressure, and other factors of that kind" in admissions decisions. Thus, Blackmun concluded, using "race and ethnic background" is "a fact of life....In order to get beyond racism, we must first take account of race. There is no other way."5
CONCLUSION Law and medicine make a vexatious combination. William Curran, now Emeritus Professor of Legal Medicine at Harvard, observed There may have been a time when doctors and lawyers had much in common, but today their environments are radically divergent and the problem of mutual understanding is a real one. The doctor.. .is steeped in the practical judgment, though he avoids generalization. The lawyer...lives within the generalities of the law....[and] often does not seem to the doctor to be seeking truth, but only to place blame.6 Justice Blackmun has struggled in a long professional career to bridge the wide stream between law and medicine, generalization and practicality. For his efforts he will be remembered by historians on both banks.
REFERENCES 1. Cushman C, editor. The Supreme Court Justices. Washington (DC): Congressional Quarterly, 1993: (a) 171-172; (b) 377; (c) 177 2. OpheimT. Justice Harry A. Blackmun. Mayo Alumnus 1989 Summer; 25:3-6 3. Holmes W. Dedicated to Excellence, The Rochester Methodist Hospital Story. Revised ed. Rochester (MN): Johnson Printing Company, 1987: 65 At least until the early 1970's, apparently only a very small number, 4. Roe vWade, 410 US 113(1973) less than 2%, of the physicians...in the United States were mem- 5. Regents of the University of California v Bakke, 438 US 265 bers of what we now refer to as minority groups....If ways are not (1978) found to remedy that situation, the country can never achieve its 6. Curran WJ, Shapiro ED. Law, Medicine, and Forensic Sci5 professed goal of a society that is not race conscious. ence. 3rded. Boston: Little, Brown, 1982: 20-21
Although three previous justices of the United States Supreme Court have had formal medical training, none has had more influence on medicine than Justice Harry A. Blackmun. Blackmun, a mathematics major at Harvard College, considered medical school but instead chose legal training. After becoming familiar with the legal work of the Mayo Clime while practicing with a Minneapolis firm, he was internal legal counsel for the clinic from 1950 to 1959. Blackmun's work contributed to the development of the clinic, especially in the establishment of Rochester Methodist Hospital. As a Supreme Court Justice, Blackmun's concern for medicine was evident in many of his judi-
cial opinions, including Roe v Wade and Regents of the University of California v Bakke. In Roe, he rested much of the constitutional foundation for legalized access to abortion on the integrity of the physicianpatient relationship. In Bakke, Blackmun contributed an opinion that recognized the responsibility of medical schools to consider racial and ethnic factors in admissions decisions to increase the diversity of the profession. Blackmun's efforts to span the gap between law and medicine will earn him a place in the history of both disciplines. {Mayo Clin Proc 1994; 69:698-699)
The United States Supreme Court has had three justices with ing instead. " Ί always wanted to be a physician. If I had it medical training. Noah H. Swayne,a (1804-1884) was ap- to do over again, I'd go to medical school,'" he said in a prenticed to a Virginia physician, but he turned to legal 1989 interview.2 Not until his final year at Harvard Law studies when his teacher died a year later. Hugo L. Blacklb School did Blackmun surrender thoughts of a medical ca( 1886-1971 ) enrolled at the Birmingham (Alabama) Medical reer.2 Blackmun returned to Minnesota and, after a judicial College, completed 2 years of the curriculum in 1 calendar clerkship, joined a Minneapolis firm, where he handled the year, but then transferred to law school. Samuel F. Miller'0 probate of the estates of Drs. Charlie and Will Mayo after (1816-1890) earned a medical degree from Transylvania their deaths in 1939. Blackmun became familiar with the University in Kentucky after submitting a thesis on cholera. medical staff at the Mayo Clinic, who in turn sent him He was a rural physician for 9 years before he left his additional legal work. In 1950, the Mayo administration practice to read law. .Despite these precedents, no other asked him to join the clinic as internal legal counsel; they justice has had a more substantial effect on medicine than considered Blackmun " 'a highly intelligent, imaginative and has Justice Harry A. Blackmun, whose 24-year term on the intense man, with superb training and experience.'"3 Court ends in 1994. BLACKMUN'S CAREER AT MAYO BLACKMUN'S EARLY CAREER Blackmun was counsel at Mayo from 1950 to 1959, an On accepting an award from the American Society of Law important period for the clinic. In 1950, Drs. Edward C. and Medicine in 1987, Blackmun remarked, " Ί acknowl- Kendall and Philip S. Hench were awarded the Nobel Prize edge that I have always had a sympathetic attitude toward the for investigations that led to the discovery of cortisone. The medical profession and for the medical mind.' "2 After being Mayo Clinic was a major center for the treatment of polio reared in St. Paul, Minnesota, Blackmun won a scholarship and a leader in the new field of open heart surgery. to Harvard College, from which he graduated in 1929 Blackmun observed medical conferences and became part of summa cum laude with a mathematics major. He considered the daily functioning of the clinic. He handled varied day-tomedical school, but for various reasons he chose legal train- day legal work, from interpreting statutes and cases to warning outsiders who misused the Mayo name for their own purposes. Perhaps his most tangible accomplishment was From the Legal Department, Mayo Clinic Rochester, Rochester, Minnesota. completing the complex legal steps to establish Rochester This article is not intended to be legal advice. Readers should consult Methodist Hospital, one of the two Mayo inpatient facilities. individual counsel for recommendations associated with any issues disA lay member of the Methodist church, Blackmun was incussed. strumental in persuading the denomination to sponsor the Address reprint requests to Mr. Francis Helminski, Legal Department, new hospital. Mayo Clinic Rochester, 200 First Street SW, Rochester, MN 55905. Mayo Clin Proc 1994; 69:698-699
698
© 1994 Mayo Foundation for Medical Education and Research
Mayo Clin Proc, July 1994, Vol 69
SUPREME COURT OPINIONS Two of Justice Blackmun's Supreme Court opinions perhaps typify his concern with the independence and social responsibility of the medical profession: Roe v Wade (1973)4 and Regents of the University of California v Bakke (1978).5 Justice Blackmun will probably be forever praised and vilified for writing the Supreme Court's opinion in Roe, a decision in which the Court by a 7 to 2 vote struck down as unconstitutional state laws that made abortion early during pregnancy a criminal offense. In the continual agitation that has occurred since Roe, the extent to which Blackmun's opinion was rooted in medical history and the integrity of the physician-patient relationship has perhaps been forgotten. The summer before Roe was announced, Blackmun "researched some of the extensive medico-legal history included in the opinion at the Plummer Library" at Mayo.2 Three-fifths of his opinion is a discussion of history and medical attitudes toward abortion. The 1970 resolution of the American Medical Association on abortion is reprinted verbatim, as is an opinion of the American Medical Association Judicial Council.4 Blackmun concluded that the decision of the Court vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention....Up to those points the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.4 Rarely has the Supreme Court so explicitly based its justification for a constitutional decision on the independence of the physician. At issue in Bakke was whether an affirmative-action program at the University of California at Davis Medical School was a constitutional exercise of the power of the state of California. Concluding that it was, Justice Blackmun's concurring opinion addressed the paucity of minority physicians:
LAW, MEDICINE, AND JUSTICE BLACKMUN
699
Conceding that the "number of qualified, indeed highly qualified, applicants for admission to existing medical schools in the United States far exceeds the number of places available,"5 Blackmun noted that universities "have always used geography, athletic ability, anticipated financial largess, alumni pressure, and other factors of that kind" in admissions decisions. Thus, Blackmun concluded, using "race and ethnic background" is "a fact of life....In order to get beyond racism, we must first take account of race. There is no other way."5
CONCLUSION Law and medicine make a vexatious combination. William Curran, now Emeritus Professor of Legal Medicine at Harvard, observed There may have been a time when doctors and lawyers had much in common, but today their environments are radically divergent and the problem of mutual understanding is a real one. The doctor.. .is steeped in the practical judgment, though he avoids generalization. The lawyer...lives within the generalities of the law....[and] often does not seem to the doctor to be seeking truth, but only to place blame.6 Justice Blackmun has struggled in a long professional career to bridge the wide stream between law and medicine, generalization and practicality. For his efforts he will be remembered by historians on both banks.
REFERENCES 1. Cushman C, editor. The Supreme Court Justices. Washington (DC): Congressional Quarterly, 1993: (a) 171-172; (b) 377; (c) 177 2. OpheimT. Justice Harry A. Blackmun. Mayo Alumnus 1989 Summer; 25:3-6 3. Holmes W. Dedicated to Excellence, The Rochester Methodist Hospital Story. Revised ed. Rochester (MN): Johnson Printing Company, 1987: 65 At least until the early 1970's, apparently only a very small number, 4. Roe vWade, 410 US 113(1973) less than 2%, of the physicians...in the United States were mem- 5. Regents of the University of California v Bakke, 438 US 265 bers of what we now refer to as minority groups....If ways are not (1978) found to remedy that situation, the country can never achieve its 6. Curran WJ, Shapiro ED. Law, Medicine, and Forensic Sci5 professed goal of a society that is not race conscious. ence. 3rded. Boston: Little, Brown, 1982: 20-21