Roe vs Roe

Is abortion a constitutional right in America?

The average American, including myself, is not sufficiently educated on the major Supreme Court cases that have impacted the landscape of our legal system and our own personal lives. This isn’t meant to be a low blow to anyone’s intellect; it’s just a very true reality. However, one Supreme Court ruling that is certainly the most famous (and ironically at the same time infamous), is the 1973 landmark decision of Roe v. Wade. Below is a short summary of the case’s highlights:

• Women have a constitutional right to abortion.
• This right was based on an implied right to privacy emanating from the Ninth and Fourteenth Amendments.
• A fetus is not a person but “potential life,” and thus does not have constitutional rights of its own.
• Set up a framework in which the woman’s right to abortion and the state’s right to protect potential life can shift.
• However, this newly established framework was essentially overruled in the accompanying case of Doe v. Bolton which was decided on the same day as Roe v. Wade, which ruled that a right to an abortion could not be limited by the state if the abortion was sought for reasons of “maternal health.”
• This definition of “maternal health” in Doe was considered to be all manners of health (physical, emotional, psychological, familial, and the woman’s age), which was vague enough to expand the right to abortion for practically any reason through all 3 trimesters of pregnancy.

When people refer to abortion being a constitutional right, it is Roe v Wade which invented that right and usually Roe they are thinking about or referencing in defense of their statement of constitutionality. But there is something odd with the Roe decision and people’s understanding of how it affects abortion legislation.

Several polling sources show that while Americans say they do not want Roe overturned, many people do not understand what Roe did for abortion legislation – or don’t even know that Roe was about abortion! The younger someone is in America, the less likely they are to know Roe is even about abortion, much less what exactly the ruling said and made legal. People do not even know what Roe says and answer other questions concerning abortion regulation which shows they clearly do not agree with Roe’s ruling; yet these same people are saying they would not want Roe overturned.

With this sincere misunderstanding in mind, many Americans today see the 1973 decision of Roe v. Wade only ever as settled law. Permanent. Precedent. Untouchable.

And it is not surprising at all that many Americans think this way. Even many of our own elected officials, including members of Congress, also believe that Roe v. Wade is of the utmost authority and has equal relevance with important founding documents. The slogan “my body, my choice” seems to be right up there with freedom of speech. Indeed, many pro-choice advocates will commonly fall back and retreat to this safe space of legality when pressed with questions concerning issues about the unborn or their natural right to life. It’s settled law, they declare.

Very few legal decisions have been historically both protected as well as fought as resonantly as the decision of Roe. But rarely has any legal decision to date been so deeply criticized as Roe has since its debut in 1973. This is surprising, given the fact all we hear about from pro-choice advocates is how supposedly settled it actually is. Any attempt to pass legislation surrounding reproduction, pregnancy, or childbirth they claim can potentially “undermine Roe.” For example, Bob Herbert of the NY Times was quoted as saying that a move during the Bush administration in the State Children’s Health Insurance Program (SCHIP) to cover prenatal children from conception onward was in fact, “a guerilla attack on abortion rights.”

That’s right – offering more health care to a mother and her unborn child is a red flag to undermine Roe. A dog whistle to the “extreme right” that the current administration was supposedly undermining abortion rights.

Herbert’s comments are far from the only of that kind. Another example is when NARAL opposed the proposed Born-Alive Infants Protection Act in 2000. They called it in a press release, “another anti-choice assault.”  NARAL claimed the Born-Alive Act was being used as an “attempt to chip away at the foundation of Roe v. Wade.” If an attempt to legally protect helpless and vulnerable babies born from botched abortion attempts cannot be on the table to discuss because of potentially “chipping away” at Roe, then you should seriously reconsider what you’re fighting for in the first place.

The absolutely blind and unquestioning allegiance to Roe has become so much of a litmus test that even when the Trump administration recently pushed forward with their newest Supreme Court nomination, the most devout Roe defenders were trying to discredit the new nominee, Amy Coney Barrett, soon after. She is suspected of being opposed to Roe, and therefore somehow does not meet the requirement of a Supreme Court Justice.

Yet, many of our current and even previous Supreme Court Justices have been very vocally critical of the way Roe was argued. We see this in many of their dissenting opinions over multiple cases through the years. While it is rare that the Supreme Court overturn a ruling, it certainly isn’t out of the question. And while the legal principle of Stare Decisis (which means considering historical cases as precedent when making similar rulings) is an important principle, it surely is not sacred. If the Supreme Court has overruled itself when an original decision was found to be fundamentally flawed, then I do believe that the Supreme Court has an obligation to return to Roe and revisit the case to ultimately reverse this erroneous legal decision —  especially considering how much criticism it has received over the years by legal experts and Supreme Court Justices alike.

Below is a collection of quotes from various individuals of varying legal expertise who openly criticize the ruling of Roe v. Wade. You will find Supreme Court Justices, legal scholars, professors, and other individuals who are critical of the decision and their well-reasoned thoughts behind it. Many of these people are pro-choice advocates themselves.

Is the right to an abortion a Constitutional one? Is it settled law? This seems to be an incredibly weak conclusion considering how many individuals below have seemingly almost no confidence in how Roe was argued or decided. This doesn’t mean however that a handful of legal experts making their opinion against Roe is a slam-dunk take-down of the 1973 ruling. But it does seem to warrant a moment of hesitation to consider that this discredits the decision reasonably.

It appears many of these individuals who do support a woman’s right to abortion also think Roe is a bad decision. Yet we’re told confidently by many in mainstream media it cannot be undone because of how unshakeable it is. As you read the quotes below, feel free to make up your own mind.

Ask yourself: Do you believe Roe v. Wade was built on a crumbling foundation or an unshakeable foundation? Is it okay to hold the pro-choice position while also reasonably arguing that Roe is a bad decision? What’s your own conclusion after reading these quotes?

John Hart Ely

“[Roe] is not constitutional law and gives almost no sense of an obligation to try to be.”

“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-à-vis the interest that legislatively prevailed over it.… 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.”

Harvard law professor
“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973)

Archibald Cox

“The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.”

Harvard law professor
“The Role of the Supreme Court in American Government,” pp. 113-114 (1976)

Laurence Tribe

“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Harvard law professor
“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87  Harvard Law Review 1, 7 (1973)

Alan Dershowitz

“Roe v. Wade and Bush v. Gore represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes… Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)… Clear governing constitutional principles … are not present in either case.”

Harvard law professor
Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford) 2001, p. 194

Kermit Roosevelt

“It is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.”

“This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entitled to the protection of the 14th Amendment.”

“By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”

University of Pennsylvania law professor
“Shaky Basis for a Constitutional ‘Right’,” Washington Post, January 22, 2003

Ruth Bader Ginsburg

“Roe, I believe, would have been more acceptable as judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

SCOTUS Justice
Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 North Carolina Law Review, 375 (1985)

William Rehnquist

“To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

SCOTUS Justice
dissenting opinion in Roe v. Wade, 410 U.S. 113, p175 (1973)

Byron White

“The Constitution itself is ordained and established by the people of the United States, decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people’s authority, for such decisions represent choices that the people have never made, and that they cannot disavow through corrective legislation.”

SCOTUS Justice
dissenting opinion in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, at 88 (1986)

Sandra Day O’Connor

“The trimester or ‘three-stage’ approach adopted by the Court in Roe, and, in a modified form, employed by the Court to analyze regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman’s right and the State’s interests. The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.”

“Just as improvement in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the State may proscribe abortions except when necessary to preserve the life and health of the mother.”

“The Roe framework, then, is clearly on a collision course with itself.”

SCOTUS Justice
dissenting opinion in Akron v. Akron Center for Reproductive Health, 462 U.S. 416, at 453-454 (1983)

Sandra Day O’Connor

“Even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today on the basis of stare decisis. For the reasons stated above, that framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.”

“The state interest in potential human life is likewise extant throughout pregnancy. In Roe, the Court held that … although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until  the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. … The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State’s interest in protecting potential human life exists throughout the pregnancy.”

SCOTUS Justice
dissenting opinion in Akron v. Akron Center for Reproductive Health, 462 U.S. 416, at 453-454 (1983)

Rehnquist, White, Scalia, Thomas

“Roe v. Wade stands as a sort of judicial Potemkin village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the façade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor “legitimacy” are truly served by such an effort.”

SCOTUS Justices
Planned Parenthood vs. Casey, 505 U.S. 833, at 370 (1992)

Cass Sunstein

“In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislature to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.”

University of Chicago law professor
“The Supreme Court 1995 Term: FOREWORD: LEAVING THINGS UNDECIDED,” 110 Harvard Law Review 6, 20 (1996)

Jeffrey Rosen

“In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.”

“Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”

George Washington University law professor
“Worst Choice” The New Republic February 24, 2003

William Saletan

“Blackmun’s Supreme Court papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.”

Slate columnist
“Unbecoming Justice Blackmun,” Legal Affairs, May/June 2005

Benjamin Wittes

“In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky. Roe is a lousy opinion that the disenfranchised millions of conservatives on an issue about which they care deeply.”

Brookings Institution fellow
“Letting Go of Roe,” The Atlantic Monthly, Jan/Feb 2005

Michael Kinsley

“Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision…”

“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.”

Washington Post columnist
“The Right’s Kind of Activism,” Washington Post, November 14, 2004

Michael Kinsley

“Against all odds (and, I’m afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.”

“…a freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami.”

Washington Post columnist
“Bad Choice” The New Republic, June 13, 1994

Edward Lazarus

“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. … Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the … years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”

“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 – at least, it does not if those sources are fairly described and reasonably faithfully followed. Before Roe, the right to contraception established in Griswold v. Connecticut and Eisenstadt v. Baird was a concept that was already barely hanging onto the high ledge of defensible constitutional thinking. In Roe, the Court added a 500 lb. lead weight. And the Court’s been looking up at the ledge ever since.”

former Justice Blackmun’s clerk
“The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, Oct. 3, 2002

“As a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”

“Liberals, Don’t Make Her an Icon” Washington Post July 10, 2003

Richard Cohen

“The very basis of the Roe v. Wade decision — the one that grounds abortion rights in the Constitution — strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.”

“As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.”

“If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe, with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers.”

“[Roe] is a Supreme Court decision whose reasoning has not held up.”

“Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well.”

Washington Post columnist
“Support Choice, Not Roe” Washington Post, October 19, 2005

Warren Burger

“The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today’s holding really mean what they seem to say, I agree we should reexamine Roe.”

“The Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action ‘encouraging childbirth except in the most urgent circumstances’ is ‘rationally related to the legitimate governmental objective of protecting potential life.’”

SCOTUS Justice
dissenting opinion in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, at 785 (1986)

Lawrence Freidman

“Thus, in one bold, cataclysmic move the Court undid about a century of legislative action. It swept away every abortion law in the country.”

Stanford University law professor
“The Conflict Over Constitutional Legitimacy,” 16, in  The Abortion Dispute and the American System (1983)

Joseph Dellapenna

“The Supreme Court’s haste to decide these cases… imposed a more extreme approach to abortion on the United States than is found in almost any other nation.”

Villanova University law professor
Dispelling the Myths, 746-747 (2006)