Roe “deserves to go the way of the Court’s other embarrassments and misfires”

By Dave Andrusko

Dred Scott circa_1857

Each January 22 and—of course—each time there is a Supreme Court vacancy, as there is now, we read countless defenses of and criticisms of Roe v. Wade. NRLC over the decades has published hundreds of critiques, including summaries of withering, no-holds-barred assessments from scholars who support legal abortion.

So, with pro-life President Donald Trump on the cusp of announcing his nominee to replace retiring Justice Anthony Kennedy, we’ll post several stories today and Monday that dig into the jurisprudential void that is the legal “reasoning” in Roe.

National Review’s Rich Lowry, a superb writer, took Roe to task earlier this week. In the 13-word-long opening sentence of his second paragraph, Lowry cuts right to the chase:

Roe is judicially wrought social legislation pretending to the status of constitutional law.

“The Supreme Court’s abortion mistake,” he writes, “is as much a highhanded attempt to impose a settlement on a hotly contested political question as the abhorrent Dred Scott decision denying the rights of blacks. It is, in short, a travesty that a constitutionalist Supreme Court should excise from its body of work with all due haste.”

Interesting coincidence. While I was on the plane returning from the three-day NRLC convention in Kansas City, I couldn’t use Wi-Fi. So instead I read excerpts from a book on my Kindle, “Writings of Abraham Lincoln, Volume 3: The Lincoln-Douglas Debates.”

Much of related to the disastrous Dred Scott decision and the deleterious impact of the Supreme Court’s 1857 decision. Interesting enough, just as the two dissenters in Roe demonstrated how historically harebrained Justice Harry Blackmun’s opinion was, so, too (in Dred Scott) Justice Benjamin Curtis “undercut most of [Justice Roger] Taney’s historical arguments, showing that African-Americans had voted in several states when the nation was founded,” as Andrew Glass explained in a post last March.

Lowry’s fine column makes a host of fine points and is very much worth reading. He concludes with this:

Roe is bad law and bad democracy. It has no sound constitutional basis, and deserves to go the way of the Court’s other embarrassments and misfires.