by Megan Wold
When the U.S. Supreme Court takes up Dobbs v. Jackson Women’s Health Organization today, it will be asked to overrule Roe v. Wade, the court’s 50-year-old precedent that created a constitutional right to abortion. Legions of commentators are turning out to defend Roe, claiming that the Supreme Court’s legitimacy depends on reaffirming it. They are wrong.
The majority’s opinion in Roe has undermined the court’s legitimacy for nearly a half-century. Roe relied on dubious reasoning to remove a contentious policy issue from the reach of the American people, placing all abortion policy in the hands of the unelected and unaccountable judiciary. As a result, Roe has politicized the court and poisoned the judiciary. The most legitimate thing the Supreme Court can do is overrule Roe.
No policy issue in this country generates political division more intensely than abortion. The Roe majority understood this. Roe described “the sensitive and emotional nature of the abortion controversy,” including “the vigorous opposing views” among Americans on the issue. At the time they were writing, the Roe majority knew that more than half of states banned abortion except to save a mother’s life. They also knew that the Hippocratic oath had forbidden physicians to give abortive remedies for thousands of years, and that abortion had been restricted under civil, canon, and Anglo-American common law.
Yet in the face of this, the Roe majority held that the 14th Amendment to the U.S. Constitution protected a woman’s right to obtain an abortion. The only textual basis for this view was the amendment’s general protection of “liberty.” But of course, no previous notion of “liberty” in this country (or in any of our historical antecedents) encompassed a right to abortion, and the 14th Amendment equally protects a right to “life.” Moreover, 30 of the then-37 states in this country had banned abortion by the time the 14th Amendment was ratified, so the provision’s original public meaning could not plausibly be said to include a right to abort.
Yet the Roe majority created such a right and went one step further by setting the new right’s parameters precisely. Under Roe, a state could pass no law restricting abortion before the end of the first trimester and only laws to advance maternal health in the second. Roe permitted states to restrict abortion only in the third trimester, after viability.
Even pro-abortion advocates do not defend Roe on its merits. Justice Ruth Bader Ginsburg publicly criticized the decision for its invented doctrine and judicial overreach. Pro-abortion advocates have drafted an entire book of faux-Roe opinions that aim to replace Roe’s reasoning with something more defensible (it’s called “What Roe v. Wade Should Have Said”). Indeed, the only justice ever to defend Roe’s original reasoning in writing is Justice Harry Blackmun — Roe’s author.
The ruling’s lack of reasoning is a key source of its illegitimacy, but another flaw exacerbates the problem: Roe made the wrong decision about who decides. Roe made the Supreme Court the only meaningful forum for abortion policymaking in this country, and in doing so, it politicized the court and the judicial confirmation process.
Understandably, many Americans have chafed under Roe’s technocratic judicial management of abortion. Roe’s arbitrary viability distinction dictates that a fetus may be protected if it needs less help, but cannot be protected if it needs a little bit more. Advancements in medical knowledge have also dated Roe. Physicians now know that the fetus possesses fully formed human features before the end of the first trimester, and that a fetus can feel pain well before viability. Yet Americans cannot update their laws to reflect these post-Roe revelations without the court’s permission.
The American people care about abortion because rights of great magnitude are at stake on all sides. At the time of Roe, the American people were expressing themselves on the issue through a diverse array of state laws. Roe held that they could not set abortion policy, however, and that only unelected justices can. Not surprisingly, every Supreme Court nominee since Justice John Paul Stevens in 1975 has been explicitly asked to state a view on Roe, and the nomination and confirmation process has become a proxy referendum on abortion — an unhinged one at that.
Roe’s lack of substantial reasoning has delegitimized it from the day it was decided, but today, we know Roe has damaged the Supreme Court as an institution, too. The court should overrule Roe and return abortion policymaking to the American people. The court’s legitimacy depends on it.
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Megan Wold reports for RealClearPolitics.
Photo “United States Supreme Court Building” by Sunira Moses. CC BY-SA 3.0.