Abortion defenders explain why Roe v. Wade was a terrible legal decision

Editor’s note. This appears on the blog at Minnesota Citizens Concerned for Life—NRL’s state affiliate.

Prof. John Hart Ely

Roe v. Wade — which ruled that the U.S. Constitution effectively mandates a nationwide policy of abortion on demand — is one of the most widely criticized Supreme Court decisions in America history. As Villanova law professor Joseph W. Dellapenna writes, “The opinion [in Roe] is replete with irrelevancies, non-sequiturs, and unsubstantiated assertions. The Court decides matters it disavows any intention of deciding—thereby avoiding any need to defend its conclusion. In the process the opinion simply fails to convince.”

Even many scholars sympathetic to the results of Roe have issued harsh criticisms of its legal reasoning. In the Yale Law Journal, eminent legal scholar John Hart Ely, a supporter of legal abortion, complained that Roe is “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.” He wrote:

“What is unusual about Roe is that the liberty involved is accorded … a protection more stringent, I think it is fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. 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-a-vis the interests that legislatively prevailed over it. And that, I believe … is a charge that can responsibly be leveled at no other decision of the past twenty years. 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.”

Below are criticisms of Roe from other supporters of legal abortion.

“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, Harvard law professor

“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. … Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the … years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” — Edward Lazarus, former clerk to Justice Harry Blackmun

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.” — Archibald Cox, Harvard law professor, former U.S. Solicitor General

“[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 a constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.” — Kermit Roosevelt, University of Pennsylvania law professor

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

“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.” — Cass Sunstein, University of Chicago law professor

“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 Roe].” — Alan Dershowitz, Harvard law professor

“[O]verturning [Roe] would be the best thing that could happen to the federal judiciary. … 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.” — Jeffrey Rosen, legal commentator, George Washington University law professor

“Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.” — William Saletan, Slate columnist, writing in Legal Affairs

“In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky. … [Roe] is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.” — Benjamin Wittes, Brookings Institution fellow

“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.” — Michael Kinsley, columnist, writing in the Washington Post.