It’s Time to End the Roe v. Wade Litmus Test

by Susan E. Wills, Esq.
September 9, 2005

Nominees to the federal bench were once evaluated on the basis of integrity, legal knowledge and ability, professional experience and judicial temperament. These are still the American Bar Association's top criteria for assessing judicial fitness.

Unfortunately, some members of the U.S. Senate have reduced the process of vetting judicial nominees to Orwellian simplicity. Remember the motto of "Animal Farm" – Animals good. Humans bad. The motto of these senators might be summed up as – Defenders of Roe good. Critics of Roe bad.

At least four senators have stated publicly that they will reject any nominee who fails the Roe v. Wade litmus test. Others have voiced concern over possible nominees whose political views they describe as "extremist" or "out of the mainstream." These are code words for "Critics of Roe bad."

This is a lot like hiring a geography teacher only if he'll promise to teach that the earth is flat. In both cases you'd be asking a judge or teacher to deny what is obviously true and affirm what is indefensible. The Court's decision in Roe v. Wade is, simply stated, an impoverished and even absurd measure of judicial fitness. Roe is almost universally acknowledged as being among the worst Supreme Court opinions of the 20th century. Even Harvard Law Professor Laurence Tribe, who strongly supports legal abortion, has disparaged Roe: "behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found" in the Court's decision. And John Hart Ely, then a Yale Law School professor, famously wrote: Roe is "a very bad decision. ... It 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."

Seven Supreme Court justices have criticized the Roe decision, including three (Burger, Ginsburg and O'Connor) who support abortion rights. Scores of law review articles have exposed the opinion's errors of fact, law and reasoning, but you'll search in vain for one peer-reviewed article defending the decision as written. Click the Roe v. Wade button on the USCCB Secretariat for Pro-Life Activities' mainpage,, to read excerpts from judicial and scholarly critiques of Roe. You'll also find 15 "Roe Reality Checks" debunking popular misconceptions about Roe and abortion generally, links to key abortion decisions, major statements by U.S. bishops on Roe, and a handy bulletin insert called "Roe v. Wade Questions and Answers."

Over seven million postcards were ordered by Catholics across the country to mail to their senators urging them "not to require support for Roe v. Wade as a condition for determining a nominee's fitness for judicial office." The National Committee for a Human Life Amendment (NCHLA), a non-profit organization which works closely with the U.S. Catholic bishops, is overseeing this grassroots campaign. If you want to help end the Roe litmus test, visit to locate and send an e-mail message directly to your senators.

Susan Wills is associate director for education, USCCB Secretariat for Pro-Life Activities.