I believe the law should presume in favor of life.
Importantly, if there comes a day when a majority of the Court overrules Roe v. Wade, the result would not be that abortion would suddenly be made illegal across America. Instead, if Roe were overruled, the state of the law would return to the status quo ante—meaning that questions of abortion would be left, once again, to elected state legislatures.
Although I am strongly pro-life, it is clear that, if Roe were overturned, at least right now, a number of states would not choose to enact robust legislation protecting unborn life. And for those of us who aspire to arrive at the day when the law protects every human life, from conception to natural death, we will have to work hard to change the hearts and minds of a considerable number of Americans for that to occur.
Encouragingly, those changes have been occurring; although there are some issues on which our cultural mores are moving in a decidedly harmful direction, America is steadily growing more and more pro-life. Our efforts to persuade have yielded fruit, and the movement has been fueled by two additional factors: (1) on abortion, national Democrats have gotten much more extreme, and (2) scientific advancement has conclusively demonstrated that unborn children feel pain and suffer during late-term abortions, and medical science has now made it possible for infants born at earlier and earlier points to survive and thrive outside the womb.
Were the matter to be resolved through the democratic process, it would enable everyone who has strong views on the subject to have a voice in the resolution. Five unelected judges wouldn’t decide the question for all of us. Here, what the people decide is not the only relevant factor—who decides is also crucial.
Legislatures can hear evidence, can hear testimony, can weigh conflicting policy arguments, and can structure different standards to meet different circumstances. The Court’s opinion in Roe attempted to fulfill precisely that legislative function, somehow divining in the Constitution differing standards that happened to reflect the justices’ flawed and limited understanding of medical science. Putting on their legislative hats, the Court decreed that differing constitutional standards would apply for the first trimester of pregnancy, for the second trimester of pregnancy, and for the third trimester of pregnancy. Needless to say, justices are not medical doctors. Nor are they legislators. Neither is the court system particularly well suited to resolving contested issues of science. And yet, in Roe, the Court purported to do just that.
The Court acknowledged that the word “abortion” appears nowhere in the Constitution. Roe purported to find this newly created constitutional right hidden in the shadows. Specifically, Roe relied on a prior case, Griswold v. Connecticut, which had engaged in mental gymnastics to conclude that the Court’s cases “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
For those who may not follow the metaphysical language, a penumbra is a ten-penny word for a shadow. So, the Court was saying, the rights in the Bill of Rights have “emanations,” which cast “penumbras,” and in those shadows is where this new right was supposedly discovered. All unbeknownst to the Framers and over a century’s worth of elected legislatures.
That is not law. It is decreeing a policy outcome that the justices happen to like.
Criticism of Roe as a judicial opinion has been nearly universal. In his dissent in Doe v. Bolton (the companion case to Roe), Justice Byron White (the lone justice appointed by President John F. Kennedy) wrote, joined by then-Justice Rehnquist:
I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers… and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
Likewise, Professor Geoffrey Stone, the former dean of the University of Chicago Law School and a clerk for Justice Brennan (who joined the majority), conceded the year Roe was decided that “[e]veryone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary.’ ” And Justice Blackmun, Roe’s author, knew it as well. When Justice William O. Douglas released his papers to the public in 1988, they included internal Court memos from when Roe was decided. Included was a memo from Justice Blackmun to the other justices explaining why he had determined to set the first cutoff at the first trimester (the first thirteen weeks of pregnancy): “This is arbitrary, but perhaps any other selected point, such as quickening or viability (of the fetus), is equally arbitrary.”
Of course, the purpose of the Supreme Court is not to draw arbitrary lines, nor to legislate public policy. As Yale Law School Professor (and later dean of Stanford Law School) John Hart Ely observed, Roe v. Wade “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Another liberal commentator, Edward Lazarus, himself a former clerk for Justice Blackmun, agreed: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone
