Roe Begone

The most astounding aspect of the invective being hurled at the United States Supreme Court in general, and at Justice Samuel Alito, the author of the opinion in Dobbs v. Jackson Women’s Health Services, which overruled Roe v. Wade (1973) and Casey v. Planned Parenthood (1992), in particular, is the almost complete absence of any critique of Alito’s constitutional reasoning, or even simple honesty about what the Court decided. On the latter score, the Court’s ruling did nothing to outlaw abortion; it simply returned the matter to state legislatures. Alito addressed what the Constitution says about abortion, not his personal views for or against the procedure.

It is fitting that the critics have concentrated solely on the result in the Dobbs, as if there were no difference between the Supreme Court interpreting the Constitution and state legislatures enacting legislation. For it is hard to think of another Supreme Court case dictated more by the desire to achieve a particular political result than Roe.

President Biden’s description of Dobbs as “an exercise in raw political power” applies with far more accuracy to Roe. Roe’s discussion of different rules to apply at different stages of pregnancy reads more like a piece of legislation than a rule derived from the Constitution. As the late Professor John Ely, a pro-abortion professor at Yale and Harvard law schools and later dean at Stanford, wrote of Justice Harry Blackmun’s opinion in Roe, “It is not constitutional law and gives almost no sense of an obligation to try.”

Harvard’s Laurence Tribe, the dean of American left-wing legal academics, described the most curious thing about Roe as being that “behind the verbal smokescreen, the substantive judgment upon which it stands is nowhere to be found.” A former clerk to Justice Blackmun, Edmund Lazarus, candidly admitted, “As a matter of constitutional interpretation, Roe borders on the indefensible.”