Commentary

Roe v. Wade: An Embarassment to Rule of Law and Integrity of SCOTUS

Lynn Wardle
By Lynn Wardle | February 7, 2017 | 10:30 AM EST

(AP Photo/Manuel Balce Ceneta)

A lawyer named Christopher Coble has published an article entitled “Top 5 Myths About Roe v. Wade.” The article is inaccurate and misleading, but it provides an opportunity to correct some common errors about Roe v. Wade and abortion in America.

First, Mr. Coble asserts that the claim that “Roe v. Wade Is an Unpopular Opinion” is false.  Actually, Roe v. Wade really is very unpopular. 

The Gallup Poll report on Abortion shows that public opinion about whether abortion should be “legal under any circumstances, legal under certain circumstances, or illegal in all circumstances” shows that American’s views about abortion have changed very little since 1975.  Those who think abortion should be illegal in all circumstances have ranged from 12 to 22 percent (19% most recently), those who favor legal abortion under any circumstances (the Roe v. Wade policy, basically) have ranged from about 21 to 34 percent (29% most recently), while those who believe that abortion should be legal only under certain circumstances (typically relating to maternal health and fetal health or development) have consistently been predominant, from about 48 percent to 55 percent (50% most recently).  

So about seventy percent (70%) of Americans believe that abortion should be limited in some way, with about 50 percent (50%) saying it should only be permitted in “certain circumstances” and 20 percent (20%) saying it should never be permitted. Less than thirty percent of Americans support the general role of Roe v. Wade that doctor-performed abortion must be allowed with no restrictions (during the first trimester), or with only health and safety regulations (during the second trimester). 

Among lawyers, judges and legal scholars Roe still is widely considered to be an embarrassment. 

Stanford Law Professor Michael W. McConnell declared: “The reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously … . ”  He added: “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 considered unjust and immoral.”

Many other leading legal scholars, both conservative and liberal, have agreed.  For instance, Yale Law Professor Alexander Bickel chastised the High Court for ruling by judicial fiat and for failing to explain its reasoning: “One is left to ask why.  The Court never said.  It refused the discipline to which its function is properly subject.  It simply asserted the result it reached.” 

Harvard Law Professor (later Stanford Law Dean) John Hart Ely wrote: “At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of any obligation to draw one been so obviously lacking.” He further observed: “Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine … .” 

University of Chicago Law Professor Richard Epstein commented that the Supreme Court’s rationale for its abortion decisions was so poor that “[w]hat seemed to make sense as a matter of principle to a lot of people and a lot of lawyers is all of the sudden suspect.”

Further evidence that Roe remains extremely controversial is the annual “March for Life” held in Washington, D.C. every January.  Typically, those protests draw tens-of-thousands up to hundreds-of-thousands of participants.  For example, the headline of an article by Christopher White and Cheryl Wetzstein in the Washington Times on January 22, 2015 read: “March for Life reflects abortion awareness among young generation,” and it reported that: “The 42nd March for Life again lived up to its reputation, drawing hundreds of thousands of mostly young marchers who oppose abortion.”

Mr. Coble denies that Roe was responsible for “a Spike in Abortions.”  In fact, the pro-abortion Guttmacher Institute’s chart “Trends in Abortion” shows that the abortion rate jumped from 16.3 (per 1000 women) in 1973 to 29.3 in 1981 – almost doubling in that period. Likewise, the abortion ratio rose from about 19 to over 30 abortions per 100 known pregnancies.

Mr. Coble disagrees that Roe “Created Abortion Rights.”  While a few federal lower courts previously had ruled in favor of an unwritten constitutional right to abortion it was Roe that legitimized and nationalized the judicial invention of a right to abortion on demand.

Mr. Coble disputes the claim that Roe “Legalized All Abortion.”  He is both wrong and right.  During the first two trimesters (first six months) of pregnancy, there can be essentially no restriction of abortion, but only peripheral medical regulations (such as requiring that a doctor must perform the abortion, that he must wash his hands, observe medical regulations, etc.). In substance, that amounts to abortion on demand.  During the third trimester states may (if they choose) ban abortions except when “necessary to save the life or health of the mother.” However, “health” is defined broadly, and abortion doctors routinely find that if the woman wants an abortion, then an abortion is “necessary for her (mental) health.” So even in the last three months of pregnancy, women can effectively obtain abortion “on demand.” 

Mr. Coble argues that the Supreme Court could not overturn Roe because of the principle of stare decisis that makes courts reluctant to overturn prior rulings. However, there are numerous examples of the Supreme Court overturning its prior decisions.  Misinterpretations of the Constitution should not be retained simply because they are old.  A decision as flagrantly extra-judicial and erroneous as Roe v. Wade ought not be perpetuated because it has endured for forty-four (44) years. 

Closing one’s eyes to the ugly facts about Roe v. Wade does not change reality.  Roe is an embarrassment to those who believe in the rule of law and in the integrity of the Supreme Court. Someday, Roe will be overturned, like Dred Scott v. Sanford and Plessy v. Ferguson eventually were overturned.  The only question is how long that will take and what damage the lingering of Roe will inflict upon the American people’s respect for and trust in the judicial branch.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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