Roe vs. Judicial Sense

Forget briefly its immorality—it’s just bad law

Earlier this year, the nation celebrated—if that is the word—the 30th anniversary of the Supreme Court’s 1973 decision in Roe v. Wade, which held unconstitutional most state laws regulating abortion. Since then, Roe has become a kind of icon, before which politicians genuflect so grandly that the same Senate that passed legislation banning partial-birth abortion attached a statement to the effect that the ban does not indicate any disapproval of Roe.

What we tend to forget in the continuing battle over abortion is what a truly bad constitutional decision Roe really was. I do not mean it was bad in the moral sense, although a strong case can be made that it was. I mean it was bad in the legal sense, a judicial opinion so poorly reasoned that it is remarkable Roe continues standing as probably the only unchallengeable precedent of the past 40 years.

How bad a decision was Roe? One might start with its stunning breadth. The plaintiff claimed to have been raped—this turned out not to be true, but that is a moot point—and argued that the Texas state law at issue was too burdensome, prohibiting abortions even in cases of rape. The way law has been taught for a century in the United States, courts are not supposed to reach out to decide issues not presented in the case.

Canons of judicial decision-making hold that judges should stick to the issue presented. What is immediately apparent is that in order for Jane Roe to prevail, the justices need have ruled no more than that a state lacks the power to outlaw abortion in the case of rape. A decision so framed would have left the rest of the constitutional law of abortion to be worked out case by case, an approach that almost certainly would have resulted in a more nuanced body of precedent. By reaching to decide more than what the facts demanded, the Court grabbed at thin air, with predictably unfortunate results.

Second, the line of argument itself is misty. The justices explained that the ban on abortion necessarily rested on a theory about when human life began; or, at least, any legitimate ban had to have protection of life as its foundation. Yet, the Court noted, over the centuries, human beings have been unable to reach any sort of stable consensus on the question. And if there is no consensus—the majority concluded—then the state cannot regulate. The burden on the freedom of the pregnant woman is too great.

But it is difficult to see why the absence of consensus (assuming indeed that it exists) is a constitutional argument. It may indicate why the state is unwise to ban all abortions. It does not tell us why the state lacks the power to do so. Most of the time, if the facts necessary to legislate are unclear, it is the task of the legislators to choose among possibilities. Otherwise, Congress could never adopt most environmental laws: the science is usually in dispute, and the laws burden the rights of property owners.

The Court then proceeded to adopt its own reading of the unclear science, the result of which was the famous trimester structure: little or no regulation in the first trimester, regulation related to maternal health in the second, and a ban (in theory) on the basis of protecting life in the third. Although the scientific evidence changes all the time, the justices continue to cling to this model.

The weakness of Roe is of course well known to constitutional scholars, most of whom support it nevertheless because they like the result. The pages of the nation’s law reviews have been filled for decades with efforts to “rewrite” the decision, that is, to offer it a more stable foundation: sex equality, freedom from religious establishment, any number of others. The justices, however, have stuck to their rather shaky privacy rationale, evidently less persuaded by the proposals emanating from the academy than by their original model.

This critique of Roe is independent of one’s view of the underlying policy. One may perfectly well support abortion rights in some or all cases and yet think they should be determined by the legislature, or at least by court decisions that seem reasonable, as Roe does not. Roe rests not on reason but on fiat: it is the law of the land only because the justices say so.

Thirty years later, it is more apparent than ever that the real trouble with Roe v. Wade is what constitutional scholar John Hart Ely recognized the summer after the decision was handed down: the problem, wrote Professor Ely, is not that the case is bad constitutional law but that “it is not constitutional law at all and gives almost no sense of an obligation to try to be.”

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