May 17, 2022

Though few could have imagined it could just a decade ago, Roe v. Wade, the infamous 1973 decision which invented a federally protected constitutional right for a woman to kill her child while in the womb, is poised to be overturned by the Supreme Court.

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The desperate defenders of the ruling are now surrounded on all sides, hunkered down and near defeat after having passionately engaged in the ill-founded and unjustifiable legal war that they began decades ago.

The decisive blow is about to be struck, and it hinges on a plain answer to the fundamental, bedrock question in the conflict: does the Constitution actually enshrine a legal protection for a woman’s right to intentionally kill her unborn child? 

The simple answer to that question should not be controversial.

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The Constitution, it should first and foremost be noted, is explicitly silent on this issue.  Even upon the ratification of the Fourteenth Amendment, which is often cited as the chief bulwark supporting the Roe decision, three-fourths of the states already had laws on the books making abortion a crime at all stages of pregnancy.  These laws were not struck down for a hundred years more, and only then at the discretion of seven very creative justices who conveniently identified a woman’s “right to abortion” in 1973, relying not so much upon the verbiage of the Constitution or intention of its framers, but upon a “mysterious trinity of privacy, penumbra, and emanations” that “had eluded legal scholars for the then 176 years of our constitutional history.”

The legal case for Roe doesn’t get any better when one considers more contemporary jurisprudence.  When asked my opinion on Roe v. Wade, I will often surprise friends to my left by saying that my opinion on the nature of the ruling is pretty close to that of the late Justice Ruth Bader Ginsburg, who wrote in a 1985 essay suggesting that the ruling “sparked public opposition and academic criticism” because “the Court ventured too far in the change it ordered and presented an incomplete justification for its action.”  This same famous progressive champion would later tell law students at the University of Kansas in 2005 that:

When the Supreme Court decided Roe v. Wade in 1973, the law was changing [at the state level].  Women were lobbying around that issue. The Supreme Court stopped all that by deeming every law – even the most liberal – as unconstitutional.  That seemed to me not the way that courts generally work.

That’s entirely correct, though it’s softer language than I’d use to describe the ruling, and softer than the language of Justice Antonin Scalia, who argues in his dissenting opinion for Planned Parenthood v. Casey (1992) that “more people would be satisfied with the results of state by state resolution,” and that “pre-Roe, moreover, political compromise was possible.”  However:

Roe’s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level… [t]o portray Roe as the statesmanlike settlement of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing short of Orwellian.  Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.

On the basic judicial question around Roe, Antonin Scalia and Ruth Bader Ginsburg both observed its general lack of legal merit, and they both recognized that the ruling has been harmful in the national sphere of politics.  Where their opinions diverged was in how to move forward from that point of agreement.