Roe v. Wade

Roe v. Wade: a lousy decision that ought to be overturned

By Dave Andrusko

Tomorrow we’ll return to analyzing briefs submitted to the Supreme Court in support of Mississippi’s Gestation Age Act which, with some exceptions, prohibits abortions after the 15th week. Included over the last eight days was an examination of the joint brief filed by National Right to Life and Louisiana Right to Life. 

As James Bopp, Jr., NRLC General Counsel, explained, the joint amicus brief in the case of Dobbs v. Jackson Women’s Health Organization “supports the overturning of Roe v. Wade and provides a legal framework that will lead directly to achieving that goal.”

Today we’ll talk about an op-ed written by Ryan T. Anderson and Prof. Robert P. George—“Roe v. Wade was a lousy decision. The Supreme Court should take the opportunity to overturn it”—which appeared in Tuesday’s USA Today.

Although both are scholars, their opinion piece is 100% accessible to the rest of us. Here are five highlights.

#1. “Last month, Mississippi presented a brief to the Supreme Court arguing that our national charter, the Constitution of the United States, does not confer a right to abortion. This is irrefutably true.” 

It cannot be stated often enough that even many pro-abortion scholars concede that Roe v. Wade is an awful decision. Anderson and George quote Edward Lazarus, a former clerk to Roe author Justice Harry Blackmun, who once wrote that “as a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” We wrote about Lazarus and other pro-abortion critics of Roe many times including here.

#2. Out of thin air. “Mississippi’s argument is straightforward:  Roe and [the 1992] Casey [Supreme Court decision] confected a ‘constitutional right’ to abortion out of thin air,” they write. “The majorities in those cases did not actually find such a right; they simply imposed their own moral-political opinions about the desirability of legal abortion.”

Exactly. Results-driven jurisprudence. The seven man majority knew in advance it wanted to eliminate the abortion statutes of all 50 states so they indulged in what dissenting Justice Byron White aptly described as “an exercise of raw judicial power.”

#3. Perhaps the best single paragraph. 

Because Roe is not constitutional law at all, the past 48 years of Supreme Court jurisprudence have proved utterly unworkable to lower courts trying to adjudicate various state protections for unborn life, the safety of women and the integrity of medicine – the three main areas of concern that Mississippi cites in defense of its law (which prohibits elective abortion after 15 weeks). As its brief points out, “Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context.”

 A very nice summary of the “three main areas of concern” plus a straightforward explanation of the core problem of Roe: it “is not constitutional law at all.”

#4. Roe is outdated on every front—and already was when it was handed down in 1973!

Justice Blackmun, writing for the majority in Roe, claimed that there was some great scientific (and metaphysical and theological) mystery about when the life of a new human being comes into existence. This was false even in 1973. Science had by then long established that a new living member of the species Homo sapiens begins from the very earliest embryonic stage (long before a woman would even know of a pregnancy).

Pro-abortionists try every which way (for example confusing the beginning of life, however millions of years ago that occurred) to get around the simple truth that the life of every individual human being begins at conception. 


#5. There is a very nice discussion of the long since outmoded notion that women “need” abortion to succeed—to be “free.” So for #5, instead let me offer their  further elaboration on the undeniable (and self-evident )humanity of the unborn child.

One of us recently saw the 12-week ultrasound of his unborn child – with vivid clarity of the distinctively human form. It is unseemly for grownups, especially those exercising public authority as judges, to pretend to be ignorant of these basic realities.

It’s a very helpful post. Please take five minutes out to readRoe v. Wade was a lousy decision. The Supreme Court should take the opportunity to overturn it”[].

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