Roe was wrong

What do Alan Dershowitz and Laurence Tribe have in common with Antonin Scalia and Robert Bork? They all believe Roe v. Wade was a bad decision. Dershowitz and Tribe are not the only pro-choice legal scholars who denounce Roe as poor jurisprudence.

John Hart Ely, another pro-choice legal scholar, wrote in 1973 in the Yale Law Journal that Roe was wrongly decided. Edward Lazarus, a dedicated pro-choicer and former clerk to Roe‘s author, says Roe was borderline “indefensible.” Pro-choice Washington Post writer Benjamin Wittes calls Roe “a lousy decision.” Slate columnist William Saletan–who left the Republican Party in 2004 because it was too pro-life–has written that Roe was a sloppy “overreach.” Pro-choice Washington Post columnist Richard Cohen calls Roe “a bad decision.”

The debate over Judge Samuel Alito and the Supreme Court cannot be an honest one until this simple truth is laid bare: Roe v. Wade was a bad Supreme decision, which no honest reading of the Constitution can support.

But to listen to the public debate over Alito, or the Senate debates over John Roberts, you would think that any judge who would reject Roe is only slightly less radical than the people who shoot abortionists. When Democratic Senators and liberal interest groups charge Bush’s nominees with being “anti-choice extremists,” on the suspicion they would overturn Roe, Republicans weakly respond by saying, in effect, “we have no idea what this judge thinks about Roe.” No one challenges the Democratic orthodoxy that Roe is as essential to American liberty as the freedom of speech. In fact, the Republican chairman of the Judiciary Committee has joined in the Democrats’ chorus, calling Roe “inviolate” and a “super-duper precedent.”

The time has come for Republican senators to stand up and speak the truth about Roe.

To begin, the media could use a crash course on just what Roe did, and what would happen if it were overturned. A Washington Post headline during the regrettable Miers affair read, “Nominee Dismisses Speculation on Roe; On Hill, Miers Discounts Report That She Would Vote to Outlaw Abortions.” The clear implication of this headline is that overturning Roe would make abortions illegal throughout America. This is the conventional wisdom. And it is wrong.

Overturning Roe would make abortion like almost every other legal issue in America: a matter for the states. Abortion used to be legislated and regulated on a state-by-state basis, just like speed limits, murder laws, marriage laws, sales taxes, hunting laws, smoking in bars, and prostitution still are. Roe basically ended that in 1973. Overturning Roe would not “outlaw abortion,” but would instead allow the elected officials in each individual state to chose for his or her own state whether to ban nearly all abortions, leave it legal in all cases, or limit it in some circumstances but allow it in others.

A second overlooked point is that if Judge Alito is confirmed, and both Alito and Roberts vote to overturn it (hardly a safe assumption given the track record of past Republican Presidents), Roe still will likely stand. There are four hard-core liberals on the bench right now–John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer–plus one “swing vote,” Anthony Kennedy. In 1992, Kennedy voted with the majority in Planned Parenthood v. Casey, the decision that saved Roe. But Republicans ought not be ashamed that they are threatening Roe. Indeed, the Democrats and Specter ought to be embarrassed to defend it.

I could lay out many arguments here as to why the decision was miserable: it depended on a discarded notion of “substantive due process” in which “process” is read to mean its opposite; Roe is based on “rights” discovered in the “penumbras” and “emanations” of the Constitution; “Roe” is now a pro-lifer, as is the woman “Doe” from the 1973 companion case Doe v. Bolton. Neither woman ever received an abortion. In fact, Doe never even sought an abortion and has always opposed it.

But it is better to let pro-choice scholars do the criticizing. In June, Ethics and Public Policy Center President Ed Whelan went before a Senate Judiciary Subcommittee and read critiques of Roe, many written by people who think abortion ought to remain legal. Most of the following are taken from Whelan’s testimony, and include citations. I have bolded the names of the Roe critics, and provided links where possible.

“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.” Laurence H. Tribe, “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).

“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.” Edward Lazarus, (former clerk to Harry Blackmun) “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

“Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.” William Saletan, “Unbecoming Justice Blackmun,” Legal Affairs, May/June 2005.

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

Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.” Benjamin Wittes, “Letting Go of Roe,” The Atlantic Monthly, Jan/Feb 2005.

Richard Cohen‘s critique, in which he called Roe “a bad decision,” was in his Post column, titled “Support Choice, Not Roe.”

Alan Dershowitz attacked Bush v. Gore as illegitimate by likening it to Roe in his book, Supreme Injustice. He wrote that the two decisions “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.” (p. 194).

If these men can admit Roe was wrong, surely Republican Senators can. At least a couple of Republican Senators have tiptoed around this question. John Cornyn and Sam Brownback have quietly asserted that reasonable people can object to Roe. It is time for Republicans to do the actual objecting.

Tim Carney is the Warren T. Brookes Journalism Fellow at the Competitive Enterprise Institute and a free-lance journalist in Washington, D.C.

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