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A Politically Inconvenient Truth: Roe v. Wade is one of the most widely criticized decisions in American history

by | Jan 27, 2012

By Dave Andrusko

As we come to the end of the week that began with pro-lifers reflecting back on 39 years of Roe v. Wade, it’s worth remembering that it is only occasionally that a politically inconvenient truth works its way out of the darkness and into the light. Roe and its mandate of abortion on demand is one of the most widely criticized Supreme Court decisions in America history.

My two favorite all-purpose assessments are as follows:

“The opinion [in Roe] is replete with irrelevancies, non-sequiturs, and unsubstantiated assertions. The Court decides matters it disavows any intention of deciding—thereby avoiding any need to defend its conclusion. In the process the opinion simply fails to convince.” Villanova law professor Joseph W. Dellapenna. And Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” Yale Professor John Hart Ely.

After nearly four decades of sometimes VERY harsh critiques (including from self-described “pro-choice” scholars), is there anything new to say? Yes!

On the one hand Roe is so wrong on so many different levels that you can point out its inadequacies almost ad infinitum. On the other hand, its legal progeny—a sympathy for assisted suicide and a disrespect for babies with disabilities—is a classic example of the slippery slope.

Writing at “The Public Discourse” site on Monday, Law professor Michael Stokes Paulsen thoroughly dismantles Roe in “The Unbearable Wrongness of Roe” (www.thepublicdiscourse.com/2012/01/4577). Roe has been the [wrongly decided] law of the land for so long, we need to periodically remind ourselves just how breathtakingly wrong-headed was Justice Blackmun’s ill-advised opinion.

That is why, I suspect, that Prof. Paulsen begins his dissection of Roe with the decision’s radicalism—“a radicalism that we may no longer grasp because it has become so familiar.”

But because I do want you to have the pleasure of reading his analysis, I will mention only one other component of Prof. Paulsen’s thorough analysis: “Roe’s Legal Untenability.” He writes

“The further problem with Roe is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text, discernible from its structure, or fairly derived from evidence of intention or historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.”

Put simply Roe is untethered. It is not connected to anything other than Blackmun’s highly selective reading of medical history and is supported by nothing more substantive than his bizarre allusions to “penumbras” and “emanations.”

Please read “The Unbearable Wrongness of Roe” at www.thepublicdiscourse.com/2012/01/4577. When you find the essay, you will agree with the bottom line: “Roe v. Wade authorized unrestricted private violence against human life on an almost unimaginable scale, and did so, falsely, in the name of the Constitution.”

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Categories: Roe v. Wade