Part 1

Ten Legal Reasons to Reject Roe

Susan E. Wills, Esq.

Decisions of the U.S. Supreme Court rarely attract much public interest. One news cycle and a few days’ discussion in the op-ed section is probably the norm for even the most important and sweeping decisions. The average person probably has to cast back to a high school history course to recall the names of even a few landmark cases other than Miranda v. Arizona (known mainly from the scripts of popular police shows).

But one Supreme Court decision eclipses all others in the past century. Far from being forgotten, in the thirty years since Roe v. Wade announced that the “constitutional” right to privacy encompasses a woman’s decision to abort her child, its fame (or infamy) just keeps growing.

Many Americans, including members of Congress, believe or act as if Roe and the U.S. Constitution have equal authority. They are wrong, both as to Roe’s place in American constitutional law and as to the duty of citizens and judges to follow it unquestioningly. Few decisions in the history of the Supreme Court have cried out so loudly for reversal on both moral and legal grounds. And rarely has any decision been so fraught with conspicuous errors of law, fact, and reasoning as the majority opinion in Roe.

This article is addressed to all who may think that Roe deserves a measure of deference as a landmark of constitutional law (notwithstanding its immoral outcome). Not so! Legally speaking, Roe is an abomination and an embarrassment to lawyers and public officials who feel compelled to defend it.

Who Says So?

Among the legal scholars who have roundly criticized the Court’s ruling in Roe as not being grounded in the U.S. Constitution are the following:

• Six justices of the U.S. Supreme Court, unfortunately not simultaneously seated: Byron White, William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy,[1] and Sandra Day O’Connor[2]
• Virtually every recognized constitutional scholar who has published a book or article on Roe—including many, like Harvard’s Laurence Tribe, who support Roe’s outcome on other grounds (although he’s switched grounds over the years).[3] Yale Law School professor John Hart Ely spoke for many when he stated that Roe “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”[4]
• Edward Lazarus, a former law clerk to Roe’s author, Justice Harry Blackmun, who writes:

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, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather. …

What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. …

The proof of Roe’s failings comes not from the writings of those unsympathetic to women’s rights but from the decision itself and the friends who have tried to sustain it. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost thirty years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.[5]

Ten Legal Reasons to Condemn Roe

1. The Court’s decision in Roe exceeded its constitutional authority.

Under the legal system established by the U.S. Constitution, the power to make laws is vested in Congress and retained by state legislatures. It is not the role of the Supreme Court to substitute the policy preferences of its members for those expressed in laws enacted by the people’s elected representatives. The role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right.

Justice O’Connor reiterates this principle, quoting Chief Justice Warren Burger:

Irrespective of what we may believe is wise or prudent policy in this difficult area, “the Constitution does not constitute us as ‘Platonic Guardians’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom,’ or ‘common sense.’”[6]

In Roe v. Wade and its companion case, Doe v. Bolton, however, the Court struck down criminal laws of Texas and Georgia that outlawed certain abortions by finding that these laws (and those of the other forty-eight states) violated a “right of privacy” that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Such a right is nowhere mentioned in the Constitution nor derivable from values embodied therein.

2. The Court misrepresents the history of abortion practice and attitudes toward abortion.

The apparent purpose of the Roe opinion’s long historical excursion is to create the impression that abortion had been widely practiced and unpunished until the appearance of restrictive laws in the prudishly Victorian nineteenth century. One example is adequate to show how distorted Justice Blackmun’s rendition of history is. He must overcome a huge hurdle in the person of Hippocrates, the “Father of Medicine,” and his famous oath, which has guided medical ethics for over 2,000 years. The original oath provides in part: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.” This enduring standard was followed until the Roe era and is reflected in the Declarations of the World Medical Association through 1968: “I will maintain the utmost respect for human life, from the time of conception.”[7] But Justice Blackmun dismisses this universal, unbroken ethical tradition as nothing more than the manifesto of a fringe Greek sect, the Pythagoreans, to which Hippocrates is alleged to have belonged!

3. The majority opinion in Roe wrongly characterizes the common law of England regarding the status of abortion.

The Court’s strained analysis and conclusion—“it now appears doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus”—are rejected by many legal scholars.[8]

William Blackstone’s Commentaries on the Laws of England (1765–1769), an exhaustive and definitive discussion of English common law as it was adopted by the United States, shows that the lives of unborn children were valued and protected, even if their beginning point was still thought to be “quickening” rather than conception:

Life … begins in contemplation of law as soon as the infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb … this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.[9]

Until well into the nineteenth century, it was assumed that a child’s life may not begin—and certainly could not be proven to have begun to satisfy criminal evidentiary standards—prior to the time her movements were felt by the mother (“quickening”) at approximately sixteen to eighteen weeks’ gestation. The Roe Court looks at the distinction in common law concerning abortions attempted before or after “quickening” and wrongly infers that the law allowed women great latitude to abort their children in the early months of pregnancy. This is like saying people had a general right to spread computer viruses before such acts were criminally prosecuted.

4. The Court distorts the purpose and legal weight of state criminal abortion statutes.

In the nineteenth century, in virtually every state and territory, laws were enacted to define abortion as a crime throughout pregnancy. They contained only narrow exceptions, generally permitting abortion only if necessary to preserve the mother’s life. The existence of such laws, and their clear purpose of protecting the unborn, rebuts the Court’s claim that abortion has always been considered a liberty enjoyed by women. These laws show broad acceptance of the view that the life of an unborn child is valuable and should be protected unless the mother’s life is at risk. In that case, of course, both mother and child were likely to perish, given the primitive care then available for infants born prematurely.

How does the Court get around the impressive body of laws giving clear effect to the state’s interest in protecting unborn lives? It attempts to devalue them by ascribing a completely different purpose: the desire to protect the mother’s life and health from a risky surgical procedure. Applying the maxim “if the reason for a law has ceased to exist, the law no longer serves any purpose,” the Court declares that abortion is now “safer than childbirth.” Therefore, laws banning abortion have outlived their purpose.

5. A privacy right to decide to have an abortion has no foundation in the text or history of the Constitution.

Roe locates a pregnant woman’s “constitutional” right of privacy to decide whether or not to abort her child either “in the Fourteenth Amendment’s concept of personal liberty … as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people.”

The Court does not even make a pretense of examining the intent of the drafters of the Fourteenth Amendment to determine if it was meant to protect a privacy interest in abortion. Clearly it was not. The Fourteenth Amendment was not intended to create any new rights but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution.

Several rhetorical devices are used to mask this absence of constitutional grounding. The Court mentions several specifically enumerated rights that concern an aspect of privacy (for example, the Fourth Amendment’s “right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures”). However, the Court fails to connect these to the newly found “right” to abortion, because no logical connection exists.

A “privacy right” large enough to encompass abortion could also be applied to virtually any conduct performed outside the public view, including child abuse, possession of pornography, or using illicit drugs. The liberty interest to be protected from state regulation is never really defined in Roe. Instead the Court describes at some length the hardships some women face not from pregnancy but from raising children:

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.

By this reasoning, one might argue that Roe’s liberty encompasses ridding oneself of unwanted toddlers! Ordinarily, the defense of rights requires us to forgo lethal methods and use means likely to create the least harm to others. We may not, for example, surround our house and yard with a high voltage fence to deter trespassers. This principle is upended in the abortion context. Adoption, for example, would effectively eliminate all the “hardships” of raising “unwanted” children by non-lethal means.

6. Although it reads the Fourteenth Amendment extremely expansively to include a right of privacy to decide whether to abort a child, the Court in Roe adopts a very narrow construction of the meaning of persons to exclude unborn children.

Much is made of the fact that person as used elsewhere in the Constitution does not refer to unborn children when, for example, discussing qualifications for public office or census-taking. That point proves nothing. The Supreme Court has held that corporations are “persons” within the meaning of the Fourteenth Amendment and they are not counted in the census, nor can a corporation be elected president.

The Roe opinion states that a contrary finding on “personhood” would produce the opposite result (presumably foreclosing the mother’s privacy right to an abortion). One does not have to be a “person” in the full constitutional sense, however, for a state to validly protect one’s life. Dogs can be protected from killing although they are not “persons.”[10] And under the Endangered Species Act (ESA), people are prosecuted, fined, and jailed for acts that may harm creatures, such as sea turtles, that are not “persons” in the full constitutional sense. Sea turtles are protected not only after they are hatched but even while in the egg. In fact, each sea turtle egg removed from its nest constitutes a separate violation under the ESA, regardless of whether the sea turtle egg contained an embryo that was alive or “quick” or “viable” or even already deceased at the time of the taking.

7. The Roe Court assumed the role of a legislature in establishing the trimester framework.

Pre-decision memoranda among members of the Roe Court acknowledged the serious flaw in establishing arbitrary, rigid time frames. Justice Blackmun himself admitted that it was arbitrary.[11] A reply memorandum from Justice Potter Stewart stated:

One of my concerns with your opinion as presently written is … in its fixing of the end of the first trimester as the critical point for valid state action. … I wonder about the desirability of the dicta being quite so inflexibly “legislative.”

My present inclination would be to allow the states more latitude to make policy judgments.[12]

Geoffrey R. Stone, a law clerk to Justice Brennan when Roe was decided, was quoted as saying: “Everyone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary.’”[13]

Justices O’Connor, White, and Rehnquist denounced the arbitrary trimester framework in O’Connor’s dissenting opinion in Akron v. Akron Center for Reproductive Health:

[There] is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today. … [That] framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.

The majority opinion of Justice Rehnquist in Webster v. Reproductive Health Services states:

The key elements of the Roe framework—trimesters and viability—are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. … The result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. As Justice White has put it, the trimester framework has left this Court to serve as the country’s “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”

8. What Roe gives, Doe takes away.

As noted above, under Roe state laws banning late-term abortions must contain a “health” exception. Health is defined in Roe’s companion case, Doe v. Bolton, as including “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient. All these factors may relate to health.” This definition negates the state’s interest in protecting the child and results in abortion on request throughout all nine months of pregnancy. The fact that the Court buries its improbably broad definition of health in the largely unread opinion in Doe v. Bolton makes it no less devastating.

9. The Court describes the right to abortion as “fundamental.”

The Supreme Court has found certain rights fundamental. Expressed or implied in the Constitution, they are considered “deeply rooted in the history and traditions” of the American people or “implicit in the concept of ordered liberty,” such as the free exercise of religion, the right to marry, the right to a fair trial, and equal protection. A state law infringing on a fundamental right is reviewed under a rigorous “strict scrutiny” standard. In effect, there is a presumption against constitutionality. The Roe Court claims abortion is fundamental on the ground that it is lurking in the penumbras and emanations of the Bill of Rights or the Fourteenth Amendment, along with privacy rights like contraceptive use. It’s ludicrous to claim that abortion is deeply rooted in American history or traditions or that our governmental system of “ordered liberty” implicitly demands the right to destroy one’s child, but it was an effective way to foreclose state regulation of abortion. The strict scrutiny test was later abandoned in Planned Parenthood v. Casey.

10. Despite the rigid specificity of the trimester framework, the opinion gives little guidance to states concerning the permissible scope of abortion regulation.

Abortion decisions that followed Roe chronologically have not followed Roe jurisprudentially. Many decisions have five separate opinions filed, often with no more than three justices concurring on most points. Eight separate opinions were filed in Stenberg v. Carhart (which effectively nullified laws in over two dozen states banning partial-birth abortion).

Roe v. Wade Must Be Reversed

Contrary to popular opinion, decisions of the U.S. Supreme Court are “often” reversed.[14] Stare decisis (let the decision stand) does not prevent reversal when the constitutional interpretation of a prior ruling is later understood to be flawed. Justice Rehnquist’s dissent in Casey notes that the Court “has overruled in whole or part thirty-four of its previous constitutional decisions” in the past twenty-one years. It the Court’s duty to reverse wrongly decided rulings. “Justices take an oath to uphold the Constitution—not the glosses of their predecessors.”[15]

The Casey plurality weighed the “integrity of the Court” (its reputation for being above political considerations) as more important than fidelity to the Constitution and, not incidentally, more important than the continuing destruction of over one million children annually. Roe must be reversed to restore integrity to the Court, meaning to the Constitution, political rights to the people and their elected representatives, and, most importantly, the right to life to children in the womb.

[2] See dissenting opinions in Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

[3] See Dennis J. Horan et al., Abortion and the Constitution (Washington, D.C.: Georgetown University Press, 1987), pp. 57–88; John T. Noonan, Jr., A Private Choice: Abortion in American in the Seventies (New York: Free Press, 1979), pp. 20–32.

[4] John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Review 82, no. 5 (1973): 947.

[5] Edward Lazarus, “The Lingering Problems of Roe v. Wade,” Findlaw.com, Oct. 3, 2002.

[6] Dissenting opinion in Akron v. Akron Center for Reproductive Health, quoting Chief Justice Warren Burger’s dissent in Plyler v. Doe, 457 U.S. 202 (1982).

[7] World Medical Association, “Declaration of Geneva” (1968).

[8] See Robert M. Byrn, “An American Tragedy: The Supreme Court on Abortion,” Fordham Law Review (May 1973): 807–862; Joseph W. Dellapenna, “The History of Abortion, Technology and Law,” University of Pittsburgh Law Review (Spring 1979): 359–428.

[9] William Blackstone, Commentaries on the Laws of England.

[10] Ely, “The Wages of Crying Wolf.”

[11] Memorandum to the Court, Nov. 21, 1972.

[12] Dec. 14, 1972 memorandum reproduced in Bob Woodward, “The Abortion Papers,” Washington Post, Jan. 22, 1989, d.01.

[13] Ibid.

[14] Justice Brandeis said this in 1932. See Horan, Abortion and the Constitution, 5.

[15] Horan, 11.

NEXT: Ederlina Co responds to Susan Wills.