The Cost of Keeping What’s Left of Roe v. Wade Is Too High

COMMENTARY Life

The Cost of Keeping What’s Left of Roe v. Wade Is Too High

Jan 25th, 2022 3 min read
COMMENTARY BY
Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies.
Demonstrators walk on First Street during the annual 49th March for Life anti-abortion demonstration on Capitol Hill in Friday, January 21, 2022. Tom Williams / CQ-Roll Call, Inc / Getty Images

Key Takeaways

Roe v. Wade ranks up there with Dred Scott and Plessy v. Ferguson as the greatest abominations in the Supreme Court’s history.

Roe’s supporters can’t defend it, but they do want to keep it.

There’s nothing left of the atrocity that is Roe v. Wade but the “essence” of a “very bad decision.”

Roe v. Wade, which ranks up there with Dred Scott and Plessy v. Ferguson as the greatest abominations in the Supreme Court’s history, has hopefully had its last anniversary. In an irony that’s hard to surpass, its supporters are complaining today about how the Supreme Court has become “politicized.” They have no one to blame but themselves.

That was “supporters,” not “defenders.” No one defends the substance of Roe v. Wade itself. Not in all the years since it was decided, not even during the recent argument in Dobbs v. Jackson Women’s Health Organization, a case the Supreme Court may use to excise Roe once and for all. No one believes that it properly interpreted the Constitution or that it even makes sense.

Americans for Life just published a survey of judicial and academic criticism of Roe, and it runs for 50 pages. This criticism, of course, is hardly limited to those objecting to Roe’s result of legalizing what 19th-century feminists called “child murder.” In fact, some of the strongest indictments come from scholars who readily admitted their support for this outcome.

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Only months after the Supreme Court unleashed Roe on the country, for example, Professor John Hart Ely endorsed its result but condemned it as “a very bad decision . . . because it is . . . not constitutional law and gives almost no sense of an obligation to try to be.” Professor Kermit Roosevelt, who also supports legalized abortion, wrote this on Roe’s 30th anniversary: “As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.”

Even the Supreme Court has been unable to defend its own work. Justices in the Roe majority abandoned it as they watched it morph and meld into something they did not recognize. After Justice Sandra Day O’Connor described Roe in 1983 as “on a collision course with itself,” the Court could reaffirm only its “general principles” in 1986 and its mere “essence” in 1992.

Roe’s supporters can’t defend it, but they do want to keep it.  Roe v. Wade may be the constitutional version of an ill-gotten gain, but it’s a gain they will hold onto like, well, like grim death. Picture Gollum holding “the precious”—Roe harms everything it touches and should itself be destroyed, but—like Gollum and the Ring—those who have Roe would do anything to keep it.

In Roe, the Supreme Court did not incorrectly interpret the Constitution; it failed to interpret the Constitution at all. The reader must wade through 40 pages of “abortion history” before catching the scent of some legal analysis, only to be disappointed. The Court asserted that the 14th Amendment is the home of the “right to privacy” which, in turn, is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” But Justice Harry Blackmun’s majority opinion contains not a single sentence interpreting the 14th Amendment to support that conclusion. In the end, Roe v. Wade is nothing more than so-let-it-be-written-so-let-it-be-done.

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A recent poll found that more than 60 percent of Americans believe that Supreme Court decisions are based more on the Justices’ political views than on the Constitution. Roe v. Wade is the quintessential example of decisions that make this result inevitable. The Court foisted a because-we-said-so decision on a volatile issue upon the country without even attempting to show that it comes from the Constitution. Those who want to hang onto it do not even try to defend it, and many even admit that the Court simply made it up; they got want they wanted and just want to keep it. Could there be a more political decision than that?

There’s nothing left of the atrocity that is Roe v. Wade but the “essence” of a “very bad decision.” The cost of doing anything but abandoning it altogether is far too great.

This piece originally appeared in the National Review