“40 years of Roe v Wade” and pro-abortion criticisms of Roe

By Dave Andrusko

Last week NRL News Today reported on the outstanding pro-life resource “40 years of Roe v Wade: 40 Days of Prayer & Reflection,” provided by the Nebraska Catholic Conference. Beginning on December 12, “40 Years” combined a substantive question about abortion followed by “Prayer Intention for Today”

I’d like to quote today’s post and then a brief comment. It read as follows:

Myth: Roe said the Constitution includes a right to abortion.

Fact: Yet even legal commentators who support legal abortion have said Roe is not good constitutional law.

Roe v. wade is “a very bad decisions…because it is not constitutional law and gives almost no sense of an obligation to try to be.” John Hart Ely, Yale Law School Professor.

“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible… [It is] of the most intellectual suspect constitutional decisions of the modern era.” Edward Lazarus, former clerk to Justice Blackmun, who authored Roe.

“Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion.” Benjamin Wittes, Washington Post legal affairs editorial writer.

“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 Tribe, Harvard Law School professor.

Over the last four decades, we’ve run a gazillon stories exposing in detail the shoddy legal and ethical underpinnings of Roe v. Wade and its companion case, Doe v. Bolton. While we’ve been very hard on Justice Blackmun, in many ways we’ve not been nearly as harsh on him as commentators who are very sympathetic to abortion.

Why? Who knows, but you could offer the following possible explanations:

  • Intellectual integrity. You really need to have swallowed the Kool-Aid to accept Roe’s preposterous string of absurdities and non-sequiturs.
  • A desire (which we have seen several time since) to provide new legal footers for Roe’s rickety foundation. They are no less unpersuasive but at least make a pass at legal coherence and consistency.
  • Embarrassment, anyone?
  • A real sense that if left to stand, Roe could, like a tornado racing through a cornfield, crush a string of decision abortion sympathizers were in favor of. Sort of a secular version of Hosea’s admonition that “They that sow the wind, shall reap the whirlwind.”
  • By bypassing the normal legislative process—and by making a hash out of the relevant legal history—this “ends justifies the means” decision would not solve, but provoke conflict.

Over at “Abortion Defenders explain why Roe v. Wade was a terrible decision,” Paul Stark has done a very nice job of addressing pro-abortion criticisms of Roe, including the ones mentioned above but many others.

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