Now that the case Dobbs v. Jackson Women’s Health Organization has come before the Supreme Court, which may lead to the revocation of the infamous 1973 Roe v. Wade decision, it may be worthwhile to examine Roe with a brief examination of why many famous jurists believed it was a horrible legal decision.
Roe, in which Justice Harry A. Blackmun, writing the opinion for the majority, ruled that the “due process” clause in the Fourteenth Amendment included an implicit “right to privacy,” followed in the footsteps of the contraceptive case Griswold v. Connecticut from 1965, in which leftist Supreme Court Justice William Douglas invented privacy rights, which he had discovered in “penumbras, formed by emanations from” the Bill of Rights.
Writing for the United States Conference of Catholic Bishops in 2003, Attorney Susan E. Wills explained that the Supreme Court exceeded its constitutional authority in Roe v. Wade because it substituted the policy preferences of the Supreme Court for what was written in law; struck down criminal laws of Texas and Georgia which outlawed certain abortions by finding that they violated a “right of privacy” which is not mentioned in the Constitution, and misrepresented the history of abortion by claiming it had been widely practiced and unpunished until the Victorian era.
It ignored condemnation of abortion as far back as the Hippocratic Oath, which stated, “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.”
Roe also misrepresented the common law of England by claiming “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” as opposed to William Blackstone’s Commentaries on the Laws of England, which stated, “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as the infant is able to stir in the mother’s womb.”
Blackstone continued, “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.”
In 1992, the Supreme Court decided Planned Parenthood of Southeastern Pa. v. Casey, stating that the test used to examine abortion laws should use an “undue burden” standard, arguing that a law was invalid if its “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
Yet Casey actually conceded that Roe was not necessarily sound law: “We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and, coming as it does after nearly 20 years of litigation in Roe’s wake we are satisfied that the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.”
Chief Justice William Rehnquist wrote furiously in his Casey disent, “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.”
Iconic conservative judge Robert Bork wrote, “Both Roe and [Planned Parenthood v.] Casey are, in fact, crass violations of the rule of law; they are not rooted in any conceivable interpretation of the Constitution, and have nothing to do with ‘constitutional terms.’”
Watergate special prosecutor Archibald Cox added, “The Justices read into the generalities of the Due Process Clause of the Fourteenth Amendment a new ‘fundamental right’ not remotely suggested by the words.”
Famed liberal Harvard professor John Hart Ely stated: “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-a-vis the interest that legislatively prevailed over it. And that, I believe … is a charge that can responsibly be leveled at no other decision of the past twenty years.’”
Harvard Law Professor Laurence Tribe admitted, “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.”