Roe v. Wade Was Weak Law Even to Scholars Who Liked the Result

If you wanted to find the most devastating review of Roe v. Wade, you would not look in a pro-life pamphlet. You would look in the Yale Law Journal, in the year of the decision, written by a professor who favored liberal abortion laws and said so.

That fact should end a certain kind of argument. For fifty years we have been told that criticism of Roe is a religious or political position wearing a robe. The record says otherwise. The first and some of the sharpest criticism came from people who liked the result and were embarrassed by the reasoning.

Define the claim

Let me state the claim precisely, because this is a claim about law, not about the morality of abortion.

The claim: Roe v. Wade (1973) was wrongly reasoned as constitutional law. That is separate from whether abortion should be legal, and separate from whether a particular abortion is right or wrong. A person can believe abortion ought to be legal in most cases and still believe Roe should have been written differently, or not at all, by judges rather than by legislatures.

I am going to argue the claim. I will also argue, at the end, that the claim has a moral consequence, because an unlimited unenumerated right invented by judges forecloses a conversation that a free people has every right to have. But let me begin with the legal point and give the strongest case for the other side first.

The case for Roe, at its best

The best case for Roe goes like this. The Fourteenth Amendment says no State shall "deprive any person of life, liberty, or property, without due process of law." The Court had, by 1973, read "liberty" to include a range of personal choices about family, marriage, child-rearing and contraception: Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), Loving v. Virginia (1967), Griswold (1965), Eisenstadt (1972). A decision about whether to bear a child is among the most personal decisions a person can make. If liberty means anything, it must include that. And the state's interest in potential life, while real, becomes compelling only at a later stage of pregnancy, which is why a framework dividing pregnancy into stages makes sense.

That is a coherent argument, and plenty of thoughtful people hold it. It deserves an answer on the merits. The problem is that the opinion that Justice Harry Blackmun wrote for the Court in January 1973 does not make that argument well, and it is the opinion that governed the country for nearly half a century.

What the opinion did

On January 22, 1973, the Court held 7 to 2 that the Constitution protects a right to abortion. Blackmun placed the right in the Fourteenth Amendment's concept of personal liberty, and said it might also rest on the Ninth Amendment. The decision was announced the same day as Doe v. Bolton, a companion case from Georgia.

Then came the framework. The Court divided pregnancy into three trimesters:

1. In the first trimester, the decision belonged to the woman and her physician, free from state interference.
2. In the second, the State could regulate in ways reasonably related to maternal health.
3. After viability, the point at which the fetus could live outside the womb, the State could protect potential life and even prohibit abortion, except where necessary to preserve the life or health of the mother.

If you read that and think it sounds like a legislature, you are not alone. It has line drawing by trimester, balancing of interests, carve-outs and exceptions. These are decisions that legislatures make after hearings, testimony and compromise. The Constitution does not contain a trimester. Neither does the common law. Blackmun produced the framework from a survey of history, medical practice and policy considerations, and then announced it as constitutional law.

Ely: the critic who liked the result

In the Yale Law Journal that year, John Hart Ely published an essay titled "The Wages of Crying Wolf: A Comment on Roe v. Wade." Ely was one of the most respected constitutional scholars of his generation, a liberal who had clerked for Chief Justice Warren. He wrote that, were he a legislator, he would vote for a statute very much like the one the Court ended up drafting. And he said Roe was a bad decision.

His criticism was not about the result. It was about method. Roe, he argued, was bad because it was not constitutional law and gave almost no sense of an obligation to try to be. The opinion pointed to nothing in the text, in the history, or in the structure of the Constitution that supported its result. It offered a policy judgment, and presented it as law.

Ely's broader view, which he developed at length in a later book, was that the Court's proper role is to keep the channels of political change open and to protect minorities who are shut out, not to impose substantive values the Constitution does not state. Conservatives should remember that when the next Court decides a case the other way.

Here is my own reading of where that leads: a right with no textual anchor is a right that depends on who has five votes.

Ginsburg: too far, too fast

The second critic, and the more surprising, was Ruth Bader Ginsburg. Years before she joined the Supreme Court, she was a leading women's-rights litigator and a supporter of legal abortion. In a 1985 law review article and again in a 1992 lecture and article, she said Roe was a mistake of breadth.

Her argument had two parts. First, she thought the Court had gone further than the case required. The Texas law in Roe banned abortion except to save the mother's life. A narrower ruling, striking that statute and leaving the next question for another day, would have let the political process, and the reform already happening in the states, continue. Roe, she argued, halted a political process that was moving in a reform direction and thereby prolonged the divisiveness it was meant to settle.

Second, she thought the right foundation was equal protection, the idea that restricting abortion burdens women's equal citizenship, rather than a privacy right rooted in the doctor-patient relationship. That is an argument about doctrine, and a thoughtful one. But notice what it amounts to: a defender of the outcome saying the Court used the wrong reasoning and the wrong scope.

If Ginsburg and Ely, two prominent legal minds who supported legal abortion, found the reasoning of Roe hard to defend, then we can set aside the claim that Roe's critics are merely partisans.

The dissents in Roe

Two Justices dissented in 1973, and read together, they are a short course in the problem.

Justice Byron White, in his dissent in Roe and Doe, said the Court was exercising "raw judicial power." He wrote that he found nothing in the language or history of the Constitution to support the Court's judgment, and that the Court was choosing to value the convenience of the pregnant woman over the continued existence of the fetus, a choice that belonged to the people and their legislatures.

Justice William Rehnquist dissented separately. He criticized the "compelling state interest" test the Court borrowed from other areas of law and said it had no business in the Fourteenth Amendment's due process analysis. He also argued that the framework looked more like a legislative judgment than a judicial one, and he made a historical point: when the Fourteenth Amendment was adopted in 1868, a large number of states, he counted at least thirty-six, had laws limiting abortion. It is difficult, he said, to conclude that the amendment's framers intended to prohibit the States from doing what most of them were doing.

That historical argument returned, almost fifty years later, as the backbone of Dobbs.

Casey: the repair that kept the damage

By 1992, Roe had survived Presidents and nominations and had become, for many, a settled thing. In Planned Parenthood v. Casey, three Justices appointed by Republican Presidents, O'Connor, Kennedy and Souter, wrote a joint opinion that reaffirmed Roe's "essential holding" while jettisoning the trimester framework.

Casey replaced it with the "undue burden" standard. A State could regulate abortion before viability as long as the regulation did not place a substantial obstacle in the path of a woman seeking an abortion. Viability remained the line after which the State could ban abortion, subject to exceptions.

Notice what that means. Casey admitted, in effect, that the trimester framework was not constitutional law. It threw out the part of Roe that most resembled legislation, and kept the right. Then it invented a new test of its own, which the lower courts struggled to apply for the next three decades. What is an "undue" burden? What is a "substantial" obstacle? The Constitution does not say. The Court said so only by reaching case by case for an answer that satisfied five votes.

So the Court, in 1992, was in the position of saying that its first answer was unworkable, its second was a test of its own devising, and the people should be grateful that the Court's version of the right was the one they would live with. When Justice Scalia dissented in Casey he called the undue-burden standard "inherently manipulable." That was a fair point then, and the three decades that followed have not made it look unfair.

The strongest objection, answered

The strongest objection to this argument is that criticizing the method of Roe is a trick. The critics say they dislike the method, but they would have disliked the result anyway, and the legal argument is a cover.

Answer it in three points.

1. The critics are not all the same people. Ely and Ginsburg supported legal abortion. Their criticism cannot be a cover for opposition to it, because they did not oppose it.
2. The test is consistency. A person who really cares about method should be willing to condemn a bad method when it reaches a congenial result. Ely did. Anyone who defends a judicial reading because of where it leads, and condemns the same technique when it leads somewhere else, is not defending a method but a team.
3. The remedy for a bad method is not necessarily a different result. When Dobbs overruled Roe, it did not ban abortion. It returned the question to the States and to the people. A State could continue to allow abortion on any terms its voters choose. A critic of Roe's method has no objection to that outcome, and a supporter of legal abortion has the entire political process available to pursue it.

That third point is the one that conservatives sometimes forget. We should be arguing for a country where the question is decided by the people, in the open, and where the losing side can win the next election. That is a better country than one in which five judges decide for everyone and the argument goes underground, which is what happened. The decision did not settle the matter. It froze the argument and made every judicial confirmation a referendum on the subject.

What Roe cost

I will say it plainly. The cost of Roe was not only legal. A question that should have been argued in fifty legislatures, with exceptions and compromises of the kind a pluralist country can negotiate, was taken out of politics and handed to a bench of nine. The result was the poisoning of the confirmation process, the elevation of litigation over persuasion, and a generation of citizens told that their votes did not matter on the most important moral question of the age. That is the argument of the Federalist: the least dangerous branch becomes dangerous when it legislates. Hamilton said in Federalist 78 that courts must exercise judgment and not will. In Roe, the Court did the second thing, and it did it while claiming to do the first.

A conservative should be consistent about this. We should not defend a right of judges to invent rights in the Constitution, whether the right is to contract, to privacy, or to something else. And we should remember that the same principle that protects the unborn from the Court's inventions also protects the rest of us from the next set of inventions.

For more on how this debate unfolded, read Griswold v. Connecticut and the Right to Privacy Built From Penumbras, Dobbs v. Jackson Read Closely, From Alito's History to the Joint Dissent and Stare Decisis Explained, and the Factors Justices Weigh Before Overruling. The older fight over unwritten rights is in Lochner v. New York Divides Conservatives More Than Progressives Admit, and the method conservatives prefer is explained in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen. To see how the Court looks back on its mistakes, see From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule. The text of the Fourteenth Amendment is on the Constitution page.

The case in brief

1. The legal criticism of Roe came first from supporters of legal abortion, including John Hart Ely in 1973 and, later, Ruth Bader Ginsburg, which shows the problem was method.
2. Roe's trimester framework was legislation presented as constitutional law, and Casey's replacement, the undue burden test, was no more anchored in text.
3. White and Rehnquist dissented on the ground that nothing in the text or history supported the result, and that history was later the heart of Dobbs.
4. The honest remedy for a bad method is a return to the political process, not a different set of judicial inventions.
5. A conservative who cares about method will refuse judicial rights-making in every direction, including when it would help our own side.

What you can do: read Casey's joint opinion and Dobbs side by side on the Supreme Court's website, then look up your own state's current statute on the subject at your state legislature's site.