Edward Lazarus, former clerk for Justice Harry Blackmun.
By Dave Andrusko
Last fall, leading up to the 40th anniversary of the wretched Roe v. Wade decision, we ran many, many excerpts from an outstanding pro-life resource “40 years of Roe v Wade: 40 Days of Prayer & Reflection,” provided by the Nebraska Catholic Conference.
Having re-read (and now posted) Paul Stark’s wonderful “Three reasons Roe v. Wade will fall,” I was reminded of the Nebraska Catholic Conference’s December 12 posting.
I’d like to quote that 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.
[Lazarus also wrote, “I believe that Roe is a jurisprudential nightmare. Extending the unenumerated constitutional right to privacy to cover a woman’s choice to have an abortion, required an analytical leap with little support in history or precedent.
“Compounding this, Justice Blackmun’s opinion provides virtually no guidance about the constitutional basis for a decision that struck down the abortion prohibitions of a majority of states. It’s a particular problem for the Supreme Court’s legitimacy when the Court invalidates legislation nationwide without giving a strong account of why it is doing so.”]
“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 gazillion 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 Harry 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 why some of those who support legal abortion are appalled by Blackmun’s reasoning in Roe and its companion case, Doe v. Bolton:
*Intellectual integrity. You really need to have swallowed the Kool-Aid to accept Roe’s and Doe’s preposterous string of absurdities and non-sequiturs.
*A desire (which we have seen several time since) to provide new legal footers to shore up 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.”
*That 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 anything but only provoke conflict.
Please take a moment, if you haven’t already, and read Mr. Stark’s “Three reasons Roe v. Wade will fall.”
If you like, join those who are following me on Twitter at twitter.com/daveha. Please send your comments to daveandrusko@gmail.com.