Roe v. Wade

In a 2002 editorial entitled Roe v. Wade at 25: Still Illegitimate, Michael McConnell wrote:

...Roe v. Wade is the most enduringly controversial court decision of the century, and rightly so. Rather than putting the issue to rest, the court converted it into the worst sort of political struggle--one involving angry demonstrators, nasty confirmation battles and confrontational sound bites. With ordinary politicians, who are masters of compromise, out of the picture, the issue became dominated by activists of passionate intensity on both extremes of the spectrum.

...The Constitution stands for certain fundamental principles of free government, and there are times when the courts must intervene to make sure they are not neglected. But when judges act on the basis of their own political predilections, without regard to constitutional text or the decisions of representative institutions, the results are illegitimate.

The reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously, even to many scholars who heartily support the outcome of the case. As John Hart Ely, former dean of Stanford Law School and a supporter of abortion rights, has written, Roe "is not constitutional law and gives almost no sense of an obligation to try to be."

The court's reasoning proceeded in two steps. First, it found that a "right of privacy" exists under the Constitution, and that this right is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."...

But the right of privacy is nowhere mentioned in the Constitution. Various judges, according to the court, had found "at least the roots of that right" in the First Amendment, in the "penumbras of the Bill of Rights," in the Ninth Amendment or in the "concept of liberty guaranteed by the first section of the Fourteenth Amendment." This vague statement is tantamount to confessing the court did not much care where in the Constitution this supposed right might be found. All that mattered was it be "broad enough" to encompass abortion.

Even assuming a right of privacy can be excavated from somewhere, anywhere, in the Constitution, what does it mean? The court avoided defining the term, except by giving examples from previous cases. The trouble is, counterexamples abound. The federal "right of privacy" has never been held to protect against laws banning drug use, assisted suicide or even consensual sodomy--just to mention a few examples of crimes that are no less "private" than abortion. It is impossible to know what does and does not fall within this nebulous category.

Even assuming that there is a right of privacy, and that its contours can be discerned from the court's examples, surely it must be confined to activities that affect no one else. It would be an odd kind of privacy that confers the power to inflict injury on nonconsenting third parties. Yet the entire rationale for antiabortion laws is that an abortion does inflict injury on a nonconsenting third party, the fetus. It is not possible to describe abortion as a "privacy right" without first concluding that the fetus does not count as a third party with protectable interests.

That brings us to step two in the court's argument. Far from resolving the thorny question of when a fetus is another person deserving of protection--surely the crux of the privacy right, if it exists--the justices determined that the issue is unresolvable. They noted that there has been a "wide divergence of thinking" regarding the "most sensitive and difficult question" of "when life begins." They stated that "[w]hen those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary...is not in a position to speculate as to the answer."

According to the court, the existence of this uncertainty meant that the state's asserted interest in protecting unborn life could not be deemed "compelling." But this leaves us with an entirely circular argument. The supposed lack of consensus about when life begins is important because when state interests are uncertain they cannot be "compelling"; and a compelling state interest is required before the state can limit a constitutional right. But the constitutional right in question ("privacy") only exists if the activity in question does not abridge the rights of a nonconsenting third party--the very question the court says cannot be resolved. If it cannot be resolved, there is no way to determine whether abortion is a "right of privacy."

In any event, the court's claim that it was not resolving the issue of "when life begins" was disingenuous. In our system, all people are entitled to protection from killing and other forms of private violence. The court can deny such protection to fetuses only if it presupposes they are not persons.

One can make a pretty convincing argument, however, that fetuses are persons. They are alive; their species is Homo sapiens. They are not simply an appendage of the mother; they have a separate and unique chromosomal structure. Surely, before beings with all the biological characteristics of humans are stripped of their rights as "persons" under the law, we are entitled to an explanation of why they fall short. For the court to say it cannot "resolve the difficult question of when life begins" is not an explanation.

It is true, of course, that people honestly disagree about the question of when life begins. But divergence of opinion is not ordinarily a reason to take a decision away from the people and their elected representatives. One of the functions of democratic government is to provide a forum for debating and ultimately resolving controversial issues. Judges cannot properly strike down the acts of the political branches that do not clearly violate the Constitution. If no one knows when life begins, the courts have no basis for saying the legislature's answer is wrong. To be sure, abortion is an explosive issue...But the Supreme Court made it far more so by eliminating the possibility of reasoned legislative deliberation and prudent compromise.

It is often said that abortion is an issue that defies agreement or compromise. But if the polling data are correct, there has been a broad and surprisingly stable consensus among the American people for at least the past 30 years that rejects the uncompromising positions of both pro-choice and pro-life advocates. Large majorities...believe that abortion should be legally available during the early months of pregnancy. There is also widespread support for legal abortions when the reasons are sufficiently weighty (rape, incest, probability of serious birth defect, serious danger to the mother's health).

But only 15% believe that abortion should generally be available after the first three months, when the fetus has developed a beating heart, fingers and toes, brain waves and a full set of internal organs. Majorities oppose abortions for less weighty reasons, such as avoiding career interruptions. Even larger majorities (approaching 80%) favor modest regulations, like waiting periods and parental consent requirements, to guard against hasty and ill-informed decisions...Most Americans would prohibit particularly grisly forms of the procedure, like partial-birth abortions.

These opinions have persisted without significant change since the early 1970s, and are shared by women and men, young and old alike...If the courts would get out of the business of regulating abortion, most legislatures would pass laws reflecting the moderate views of the great majority. This would provide more protection than the unborn have under current law, though probably much less than pro-life advocates would wish.

The Supreme Court brought great discredit on itself by overturning state laws regulating abortion without any persuasive basis in constitutional text or logic. And to make matters worse, it committed these grave legal errors in the service of an extreme vision of abortion rights that the vast majority of Americans rightly consider unjust and immoral. Roe v. Wade is a useful reminder that government by the representatives of the people is often more wise, as well as more democratic, than rule by lawyers in robes.