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The pervading dishonesty of Roe v. Wade

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Politics,Beltway Confidential,Timothy P. Carney

Roe v. Wade, which declared abortion to be constitutionally protected, and thus voided state laws banning it, was a horrible decision morally and legally. So when President Obama praises the decision on its 39th anniversary, he either shows a strikingly poor understanding of constitutional law (especially for a Harvard Law grad), or he buys into the dishonesty that pervades the opinion and its defenses.

Just look at what pro-choice legal scholars say. Ruth Bader Ginsburg called the ruling "heavy-handed judicial activism." Laurence Tribe wrote "behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Former Harry Blackmun clerk Edward Lazarus wrote "[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible."

There are plenty more examples like this (I'm pasting them at the bottom of this page), but this doesn't keep Obama from pouring unmitigated praise on the ruling:

as we remember this historic anniversary, we must also continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.

54 million babies have been aborted since these five judges contorted the Constitution to fit their ideological views and their social agenda. Today, in D.C.'s freezing rain thousands of pro-lifers are marching against this atrocity.

 

Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.

“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).


Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court

Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

North Carolina Law Review, 1985


Edward Lazarus — Former clerk to Harry Blackmun.

“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”
….

“What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed.”

The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, Oct. 3, 2002

“[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”

Liberals, Don’t Make Her an Icon” Washington Post July 10, 2003.



William Saletan — Slate columnist who left the GOP 2004 because it was too pro-life.

“Blackmun’s [Supreme Court] papers vindicate every indictment of Roeinvention, overreach, arbitrariness, textual indifference.”

Unbecoming Justice Blackmun,” Legal Affairs, May/June 2005.



John Hart Ely — Yale Law School, Harvard Law School, Stanford Law School

Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
….

“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”

“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973).



Benjamin Wittes — Washington Post

Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”

Letting Go of Roe,” The Atlantic Monthly, Jan/Feb 2005.



Richard Cohen — Washington Post

“[T]he very basis of the Roe v. Wade decision — the one that grounds abortion rights in the Constitution — strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.”
….

“As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.

“If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers.
….

Roe “is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.”
….

“Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well.”

Support Choice, Not Roe” Washington Post, October 19, 2005.



Alan Dershowitz — Harvard Law School

Roe v. Wade and Bush v. Gore “represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes…. Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)…. [C]lear governing constitutional principles … are not present in either case.”

Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford) 2001, p. 194.

 


Cass Sunstein — University of Chicago and a Democratic adviser on judicial nominations

“In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.”

“The Supreme Court 1995 Term: FOREWORD: LEAVING THINGS UNDECIDED,” 110 Harvard Law Review 6, 20 (1996).

“What I think is that it just doesn’t have the stable status of Brown or Miranda because it’s been under internal and external assault pretty much from the beginning…. As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled.”

Quoted in: Brian McGuire, Roe v. Wade an Issue Ahead of Alito Hearing,” New York Sun November 15, 2005



Jeffrey Rosen — Legal Affairs Editor, The New Republic

“In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.
….

“Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”

Worst Choice” The New Republic February 24, 2003


Michael Kinsley

“Against all odds (and, I’m afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.
….

“…a freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami.”

“Bad Choice” The New Republic, June 13, 1994.

Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision….

“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.”

The Right’s Kind of Activism,” Washington Post, November 14, 2004.


Kermit Roosevelt — University of Pennsylvania Law School

“[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.

“This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entited to the protection of the 14th Amendment.
….

“By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”

Shaky Basis for a Constitutional ‘Right’,” Washington Post, January 22, 2003.


Archibald Cox — JFK's Solicitor General, Harvard Law School

“The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution”

The Role of the Supreme Court in American Government, pp. 113-114 (1976)

 
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