On Roe v. Wade

Given the amount of attention and discourse given on the subject of Roe v. Wade recently, I thought it might be useful to give some thoughts on it.

In the off chance you're unaware: Roe v. Wade (1973) was a decision of the United States Supreme Court that asserted there was a constitutional right to an abortion. Its rules were modified somewhat by the later Planned Parenthood v. Casey (1992) which allowed for greater abortion regulation than the original decision, but nevertheless the core holding that there was such a right in the constitution was retained. Strictly speaking, Planned Parenthood v. Casey now provides the standard for judging the constitutionality of abortion regulation, so that would be what is overruled rather than Roe v. Wade, but the latter is what is used in popular discourse so I will use that

The reason it has been getting a lot of attention lately because it is possible that the Supreme Court may overrule Roe v. Wade/Planned Parenthood v. Casey... the actual likelihood of this is unclear. I won't get into too much of an analysis on this, but Justice Thomas has been very explicit in that he thinks the original decision was wrong. Justices Breyer, Kagan, and Sotomayor are basically certain to not overturn it. The other justices may or may not be interested in overruling it, to varying degrees.

But let's set aside the question of that and ask ourselves an important question: Should it be overruled?

In popular discourse, you will see very few people actually discuss the rationale of the decision itself; everyone talks about whether they think abortion should be legal or not. Now, it seems to me that when it comes to a court decision, the question should be focused on whether as a matter of law it was correct. If the constitution includes a right to an abortion, then Roe v. Wade was correct in that. If the constitution does not include such a right, then Roe v. Wade was decided incorrectly.

So let's set aside the question of whether abortion should or should not be legal and focus on the question of the decision as a matter of constitutional law. I believe, looking it at from that perspective, that Roe v. Wade was incorrect. Now, I admit I consider myself pro-life. Thus I do have a bias in this area, and this probably affects my judgment to some degree. However, I do believe that I would consider it wrongly decided even if I were pro-choice. I might be less critical of the decision, or I might not be as much of an advocate for it being overruled, but I believe I would still say it's the wrong decision as a judicial matter. Indeed, a fairly famous critique of Roe v. Wade came from someone who was pro-choice.

And that brings us to the important question of its correctness as a matter of constitutional law. I could try to give a lengthy explanation here, but in all honesty one of the better critiques of Roe v. Wade was already given back in the 1970's. Soon after the decision, John Hart Ely (who would go on to be one of the most respected and most-cited constitutional scholars in US history) wrote an article in a law journal called "The Wages of Crying Wolf: A Comment on Roe v. Wade" in which he harshly criticized the decision. He was very clear in his opinion on it:

"It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court-it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's-it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be. "

The article can be found in full here:
https://digitalcommons.law.yale.edu/fss_papers/4112/

I would strongly recommend reading it before going further. However, I also must acknowledge that not everyone is interested in reading a lengthy law review article for context, even though it provides a lot of useful information. So I'll quote some of the most important excerpts:

"Of course a woman's freedom to choose an abortion is part of the "liberty" the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone's freedom to do what he wants. But "due process" generally guarantees only that the inhibition be procedurally fair and that it have some "rational" connection–though plausible is probably a better word–with a permissible governmental goal. What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus's existence is unable to overcome it-a protection more stringent, I think it fair to say, than that the present Court ac- cords 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-á-vis the interest that legislatively prevailed over it. And that, I believe–the predictable early reaction to Roe notwithstanding ("more of the same Warren-type activism")–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.

Not in the last thirty-five years at any rate. For, as the received learning has it, this sort of thing did happen before, repeatedly. From its 1905 decision in Lochner v. New York 8 into the 1930's the Court, frequently though not always under the rubric of "liberty of contract," employed the Due Process Clauses of the Fourteenth and Fifth Amendments to invalidate a good deal of legislation. According to the dissenters at the time and virtually all the commentators since, the Court had simply manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures."

After some additional discussion on Lochner and its related cases, it further notes:

It may be, however-at least it is not the sort of claim one can disprove -that the "right to an abortion," or noneconomic rights generally, accord more closely with "this generation's idealization of America" than the "rights" asserted in either Lochner or Dandridge. But that attitude, of course, is precisely the point of the Lochner philosophy, which would grant unusual protection to those "rights" that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them. The Constitution has little to say about contract, less about abortion, and those who would speculate about which the framers would have been more likely to protect may not be pleased with the answer. The Court continues to disavow the philosophy of Lochner. Yet as Justice Stewart's concurrence admits, it is impossible candidly to regard Roe as the product of anything else.

That alone should be enough to damn it. Criticism of the Lochner philosophy has been virtually universal and will not be rehearsed here.

Strictly speaking, the above description of Lochner v. New York is a little unfair. Despite being referred to as the "Lochner era", the proper start of the idea of the "liberty of contract" that permeated throughout it began with Allgeyer v. Louisiana, in 1897. For a good discussion of Lochner v. New York I recommend reading the article "The Anticanon" by Jamal Greene which discusses the "anticanon" decisions of the Supreme Court, Lochner among them. However, the discussion of Lochner v. New York in The Wages of Crying Wolf--even if perhaps putting too much blame on Lochner itself--remains valid.

But once again, I urge people to read the entire article for a very good explanation of the problems of Roe. There are a few things in it, however, that are out of date. I do not think they negatively impact any major point, but for the record:
1) The author notes the dissonance between declaring abortion to be a constitutional right while there were various laws prohibiting sodomy. The much later decision, Lawrence v. Texas, ruled such laws unconstitutional and therefore removed this dissonance. However, the other points raised by Ely remain unaffected, and even in his article he notes how the Court would be better justified in striking down such laws than they would striking down abortion regulation. Lawrence v. Texas is also a much more plausible extension of Griswold v. Connecticut (declaring prohibition of the usage of contraception to be unconstitutional) than Roe ever was.
2) Some time is spent criticizing the trimester rules of Roe. Those were replaced by new standards in Planned Parenthood v. Casey.

But, again, these changes do not affect the core points of the essay, which I view as very strong.

One final thing that should be noted is that John Hart Ely was pro-choice. I mentioned this before, but it bears stressing. He states bluntly in the essay, "Were I a legislator I would vote for a statute very much like the one the Court ends up drafting." This was not someone who felt abortion should be criminalized--this is someone who felt that Roe v. Wade was good policy, but was nevertheless the wrong decision. No accusation of bias against abortion legalization can be aimed at him.

So Roe v. Wade rests on very shaky constitutional ground to begin with. But there is another issue with it that must be considered: Its negative effect on the political system.

Once again I feel I must offer a quote simply on the basis that someone else made my point better than I likely could. From Justice Scalia's dissent in Planned Parenthood v. Casey, we get the following quite accurate description of the effect of Roe v. Wade on political discourse, and on the Supreme Court in particular.

"Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. ("If the Constitution guarantees abortion, how can it be bad?"—not an accurate line of thought, but a natural one.) Many favor all of those developments, and it is not for me to say that they are wrong. But to portray Roe as the states manlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortionumpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees."

These words were written in 1992, and with nearly 30 years of time since, we can see that they have only proven even more accurate. This issue has taken over our national politics and especially the issue of nominations to the Supreme Court.

I would also assert that Roe v. Wade is at least partially responsible for much of the political polarization we have seen. With so many people seeing abortion as the preeminent issue, or the only issue that matters when it comes to voting, it creates polarized politics. And by elevating abortion to the federal level, as Roe v. Wade did, it meant that what might have been limited to the state level is now a problem on the federal level.

Would an overturning of Roe v. Wade fix this? I don't think it would fully fix things, but I think our political system would improve, once the initial political shock wore off. An overturning of Roe v. Wade, it must be remembered, would return the issue to the state legislatures. There would obviously be fights on the state level continuing, but the heat would be taken off the federal level to a great degree, and perhaps

And so that is my post on the issue of Roe v. Wade. Did I persuade anyone with this? Maybe, maybe not. But I at least hope that someone may read this and at least understand that, irrespective of the moral arguments for or against abortion legalization, the problems with Roe v. Wade's assertion that the constitution includes right to an abortion should not be ignored, nor should its negative effects on the political system be ignored.