Supreme Court Did Not Resolve Abortion Controversy: It Created It

by Maureen Bailey, Esq.
June 16, 2005

June 29th marks the thirteenth anniversary of Casey v. Planned Parenthood, the United States Supreme Court decision that reaffirmed the central holding of Roe v. Wade--that women have a "liberty interest" to choose abortion throughout the nine months of pregnancy. The Court said it decided to maintain its precedent in Roe in part because case law subsequent to and legal principles developed since Roe have not undermined its legal basis. The Court said, "No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973." This line of enquiry begs the question of whether Roe ever stood on a firm legal foundation.

Any legal basis for Roe was challenged immediately following its announcement even by scholars who support legal abortion.

In 1973, John Hart Ely, a professor of law at Yale Law School, writing in the Yale Law Journal said, Roe v. Wade 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."

The same year, Harvard law professor, Laurence Tribe wrote, "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

Earlier this year, Benjamin Wittes, a Washington Post legal affairs writer noted, "Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion."

Perhaps, most interesting of Roe's commentators is Edward Lazarus, a former law clerk to Justice Harry Blackmun, Roe's author. Lazarus, who describes himself as someone who loved Blackmun "like a grandfather" called Roe "one of the most intellectually suspect constitutional decisions of the modern era" and "a jurisprudential nightmare."

Lazarus has also commented on Casey. He said the Casey opinion was "not an act of constitutional interpretation or lawmaking. Instead, it was an act of judicial and political diplomacy – one designed to extricate the Court from the eye of the abortion rights storm."

Indeed, in Casey, the Court said that a "dimension" of its decision in Roe was to "call [] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

It is now 32 years after Roe, 13 years after Casey, and 5 years after Carhart v. Stenberg which invalidated Nebraska's ban of the grisly partial-birth abortion procedure. On the Court's docket for this fall is consideration of New Hampshire's parental notice law. The national controversy of which the Court speaks is far from over. The Court did not resolve the controversy. It created it. Without any real constitutional basis, the Court usurped from the democratic process and the American people the question of what protection ought to be afforded to unborn children. The Court said none. The vast majority of Americans disagree. Roe must be overturned.

Maureen Bailey is a public policy analyst with the Secretariat for Pro-Life Activities in the United States Conference of Catholic Bishops