Roe v. Wade Is Both Evil and Stupid

In all of American history, has there ever been another Supreme Court decision as infamous as Roe v. Wade? The only possible contender that comes to mind is Dred Scott v. Sandford, the 1857 decision which held that African Americans were not U.S. citizens. But that case is obsolete now, overturned by civil war and constitutional amendment. No one holds marches over Dred Scott, because what would be the point?

And even among the universe of cases still considered to be valid precedent, not one can command the level of emotion, from both supporters and detractors, as Roe. Democrats persist in attempting to make overturning Citizens United a hot-button issue with the electorate, but few in the general electorate could even say what was decided in Citizens United (it held that certain campaign finance reforms passed by Congress violated the First Amendment’s guarantee of free speech). Likewise with Shelby County v. Holder (finding portions of the Voting Rights Act unconstitutional). And while conservatives were angered by the Court’s twin rulings on Obamacare, in NFIB v. Sebelius and King v. Burwell, the cases are hardly household names. There are no mass protests or marches on Washington on the anniversary of the rulings.

But Roe is different. It is the only Court decision still commemorated on the anniversary of its ruling, by supporters and opponents alike, more than forty years after the case was decided. Even among those who in general care nothing for politics, the name Roe v. Wade is well known. Supporters believe that without it, abortion would quickly be outlawed and criminalized altogether. Opponents often believe something similar, and therefore hope for its destruction.

The truth is a little less dramatic. A reversal of Roe would merely allow states wider latitude in regulating abortion. If some states wanted to ban it altogether, that would then be permissible. But if other states wanted to increase access to abortion, that too would be constitutional.

That being said, Roe v. Wade is undoubtedly an abomination, from both an ethical and legal perspective. It bars any state, even an imaginary state filled only with pro-life citizens, from regulating abortion in any significant way, let alone outlawing it. The mountain of scientific evidence now available to us, proving that fetuses are in fact living beings, is so overwhelming that a complete list is nearly impossible. At the moment of conception, fetuses have unique DNA. They have a beating heart at three weeks gestation, and unique fingerprints at ten weeks.

For perspective, many of the most aggressive Republican proposals to ban abortion altogether, which liberals fight tooth and nail, would forbid abortion after twenty weeks. Roe allows abortion right up through childbirth, or, on average, roughly forty weeks after conception.

And if that weren’t enough, the legal reasoning—or lack of it—in the Roe decision should make even pro-choice lawyers squirm. Again, an exhaustive list is beyond the scope of this post, although the full text of the majority opinion can be found here. But much of the opinion reads more like a speculative article in a medical journal than a governing ruling of the United States Supreme Court. Twice the author, Justice Harry Blackmun, bases his reasoning on a “right to privacy” he openly admits appears nowhere in the explicit text or history of the Constitution, but rather in “a certain guarantee of zones or areas of privacy” found, among other places, in “the penumbras of the Bill of Rights…” One doesn’t have to be a legal scholar to see that Blackmun was plainly grasping at straws, searching for every possible scrap of evidence that could support the result he had already decided he wanted to reach. Is it inventive? Sure. But the job of a Supreme Court Justice is not to be inventive with the law, in order to reach a predetermined outcome. The law should always determine the outcome.

Frustratingly, the Supreme Court came close to eradicating this blight on its history in 1992, with the case of Planned Parenthood v. Casey. A majority of justices seemed poised to overturn Roe, when one of them—one Anthony Kennedy—apparently got cold feet.

Here’s hoping Neil Gorsuch, once confirmed, will be able to keep his close friend Justice Kennedy grounded in the actual text of the law, rather than flitting around looking for desired outcomes. And hopefully, should Kennedy decide to retire within the next few years (as is the rumor), President Trump will appoint someone willing to correct the mistakes of both Kennedy in 1992, and the Court as a whole in 1972, by helping to end the stain that is Roe v. Wade for good.