Pro-Choice Legal Scholars:
Roe v Wade Isn’t Constitutional
– By Howard Sierer –
Legal scholars, including most who are resolutely pro-choice, agree that the 1972 Supreme Court Roe v Wade abortion decision has no Constitutional basis. Instead, Justice Harry Blackmun invented a “right to privacy,” unmentioned in the Constitution.
Here’s a sampling of opinions by widely-respected, pro-choice legal scholars:
Roe v. Wade “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.” – Pro-choice legal scholar John Hart Ely in the Yale Law Journal
“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. 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. As a matter of constitutional interpretation, even most liberal juris prudes — if you administer truth serum — will tell you it is basically indefensible.” – Edward Lazarus, clerk to former Justice Harry Blackmun, author of Roe v Wade
“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. It is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment.” Pro-choice scholar Kermit Roosevelt, University of Pennsylvania Law School
“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.” – Liberal legal scholar Laurence Tribe, Harvard University
“The 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.” Roe “is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.” – Richard Cohen in the Washington Post
“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.” – Jeffrey Rosen, Legal Affairs Editor of The New Republic
“…a freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami.” – Michael Kinsley, former Crossfire Co-Host and Editor of Slate
I agree with the pro-choice legal scholars above that the far-reaching but seriously-flawed Roe v Wade should not be allowed to stand. If Justice Alito’s recently-leaked opinion is in fact the Supreme Court’s decision, it will return the issue to the public’s elected representatives where it belongs.
Harvard Law School Professor Alan Dershowitz supported legislating abortion rights rather than imposing them from the bench. He pointed out that “judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims as in the abortion controversy.” Former Associate Justice Ruth Bader Ginsburg agreed, saying, “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
Despite howls from pro-choice politicians, overturning Roe will not end abortion in America. Unless Congress chooses to act, abortion rights will be decided by the states. Some will restrict or ban abortions while others may make them easier to obtain. But this profound moral question will be debated and settled the way it should be in a democracy—by the people.
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Good article, but I’m having trouble understanding the sentiment regarding the passage of a law protecting abortion. If the Supreme Court does in-fact state that this is a right that belongs to the states then would it not require a constitutional amendment to have that power transfered to the federal government?
There has never been a federal law regulating abortion and the U.S. is the only major country without a nationwide abortion law. Since the country is fairly evenly split on the issue, Members of Congress have been happy to avoid a contentious vote to legalize, prohibit or regulate abortion, knowing they could simply shrug their shoulders and say that the issue had been settled by the Supreme Court. The closest the federal government has come is called the “Hyde Amendment” which prohibits federal funding of abortions and has been passed annually in appropriations bills by a bi-partisan majority since 1976 (although not without controversy).
Without federal legislation, states have passed laws regulating abortions and as to be expected, those laws vary significantly. In socially liberal states like California and New York, almost anything goes. Socially conservative states like Texas and Mississippi have passed increasingly restrictive abortion laws over the years and it is Mississippi’s most recent law that is before the Supreme Court this year.
The Supreme Court is NOT stating that abortion is a right that belongs to the states; its tentative decision vacates any Constitutional right to abortions and therefore returns any regulation to the legislative branches of governments, both federal and states. Since there is no federal law, existing state laws would govern the practice. Congress could choose to pass an abortion law and Sen. Schumer has just introduced one. However, per current Senate rules, any law would be subject to filibuster and would require 60 votes to pass. Schumer knows his bill will not pass but he intends to embarrass socially conservative senators who vote against it. As it has been for 50 years, abortion is a political hot potato.