Roe v. Wade: An Indefensible Ruling

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Roe v. Wade has been the law for nearly half a century, yet even abortion supporters recognize its legal reasoning is threadbare. In subsequent cases in which it's been upheld, more often than not the justification is stare decisis — the fact that it is longstanding precedent on which Americans have come to rely, and therefore to overturn it could result in upheaval and crisis. But that doesn't touch on the underlying rationale of Roe, a rationale scholars, judges and experts alike recognize to be indefensible. What follows is a compilation of notable abortion supporters on Roe.

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"Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." — Ruth Bader Ginsburg, U.S. Supreme Court Justice

"As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose. … Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the ... years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms." -Edward Lazarus, former clerk to Justice Harry Blackmun (author of Roe v. Wade)

"Overturning would be the best thing that could happen to the federal judiciary. … Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun's famously artless opinion itself.” -Jeffrey Rosen, George Washington University law professor

"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." -Laurence Tribe, Harvard law professor

"What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interests that legislatively prevailed over it. And that, I believe ... is a charge that can responsibly be leveled at no other decision of the past 20 years." -John Hart Ely, Yale law professor

"The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations. … Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution." — Archibald Cox, Harvard law professor and former U.S. Solicitor General

"[It] is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result. This is not surprising. As a constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.” — Kermit Roosevelt, University of Pennsylvania law professor

"[C]lear governing constitutional principles … are not present [in Roe]." -Alan Dershowitz, Harvard law professor

"In the Court's first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges." -Cass Sunstein, University of Chicago law professor

"Blackmun's papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference." -William Saletan, Slate columnist

'Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching." -Michael Kinsley, Washington Post columnist

"In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky. … [Roe] is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply." -Benjamin Wittes, Brookings Institution fellow

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