Roe v. Wade: No Test for a Judge

by Susan E. Wills, Esq.
January 14, 2005

On the weekend of January 22-23, more than a million Americans are expected to take part in prayer services and public witness to mark the 32nd anniversary of the Supreme Court's abortion decisions Roe v. Wade and Doe v. Bolton.

Some who come to pray and give witness have been hurt profoundly by the abortion "liberty" unleashed in these decisions. Many women endure deep sorrow from the loss of a child because someone – boyfriend, parents, a counselor – convinced them, or they convinced themselves, that abortion was a good solution to unexpected pregnancy. Many men carry the burden of regret that they were powerless to protect their own children.

The influence of Roe and Doe has spread like a poison throughout public and private life.

How many young men today refuse to accept the responsibility of marriage and fatherhood, much less the discipline of abstinence until marriage, because legal abortion allows, if not encourages, such irresponsibility? The Washington Post recently reported on a growing trend of violence by men, including murder, against pregnant women when the mother of their child refuses to have an abortion.

Abortion's impact on society itself is no less pernicious. It has coarsened society, subverted the democratic process, caused loss of respect for the Court and for law, degraded the practice of medicine, and undermined two of the highest values of our nation—recognition of the inalienable right to life and the equal protection of the law.

The decades-long effort to end the injustice of abortion continues to be stymied by two factors: first, the extraordinary difficulty of overcoming an erroneous Supreme Court decision, and second, the loyalty of some U.S. Senators to the abortion industry and to Roe. Abortion advocates have announced plans to spend millions of dollars to ensure that these Senators make allegiance to Roe a litmus test in vetting judicial nominees. It has been reported that some Senators are willing to do just that. But, as Cardinal William H. Keeler recently stated in a letter to U.S. Senators: "By any measure, support for [Roe] is an impoverished standard for assessing judicial ability."

And no one seriously suggests that Roe be protected because of its legal merit. Since 1973, six Supreme Court justices and scores of legal articles have criticized Roe and Doe for inventing a right to abortion not found in the Constitution and for usurping the right of states and the people to fashion laws that reflect their views on abortion. As a distinguished law professor, Michael S. Paulsen, put it: "Roe is an embarrassment—perhaps the worst work-product the Court has ever produced. ... Roe's reasoning is utterly laughable, a running joke in constitutional law circles."

Allegiance to Roe has become a litmus test for judicial nominees precisely because it is deeply flawed as "constitutional law" and so vulnerable to reversal by future justices more faithful to the Constitution than to bad precedent.

Roe has to go. It is bad law, bad medicine, and bad social policy.

Susan Wills is associate director for education, Secretariat for Pro-Life Activities, U.S. Conference of Catholic Bishops.