CRB: Roe v. Wade at 40

The Fall 2013 Claremont Review of Books (subscribe here) comes out this week, and our friends at the CRB have allowed us once again to preview some choice (my choice) pieces for our readers. Yesterday we took a look at Michael Nelson’s review of 2012 presidential campaign books. Today we consider the Supreme Court’s 1973 decision in Roe v. Wade.

Abraham Lincoln famously characterized the Supreme Court’s Dred Scott decision as “an astonisher in legal history.” In part he objected to “[t]he sacredness throw[n] around this decision[.]” It was, he said, “a degree of sacredness that has never before been thrown around any other decision.”

Lincoln! Thou should’st be living at this hour. In the the sacralization of Supreme Court decisions, Roe v. Wade takes the cake. It is central to the creed of the modern Democratic Party. For them it is holy writ. If for no other reason it warrants our continued study and attention.

In the new CRB Notre Dame law professor Gerard V. Bradley’s takes a look at Roe v. Wade at 40.” Arguing against those who see Roe as exhibit A for all the worst excesses of activist, “rights”-creating judicial philosophizing, Professor Bradley contends that the decision, arrived at with great care, was in fact the result of a distinctively legal way of reasoning, a “maximum legal effort.” Professor Bradley finds the superficially conservative restraint of the Justices to be responsible for the decision’s most galling errors.

This is most evident, according to Bradley, in two crucial instances where the opinion is too legal, and not nearly philosophic enough: in the questions as to the meaning of “persons” under the 14th Amendment, and whether, apart from the 14th Amendment, states could include the unborn as “persons” under their homicide laws: “The Roe court … made it as clear as it could that the philosophical truth of the matter—whether the unborn are really persons—was irrelevant to whether they had an equal constitutional right as ‘persons’ not to be killed. The Court similarly walled off the second controlling point—about whether states could legislate against abortion, even if the Constitution did not itself prohibit it—from the relevant philosophical truth. The Roe opinion explicitly justified abortion liberty in the pregnant woman’s concrete experiences, the ‘distressful life’ the state would, according to the majority, impose upon her by denying the choice to abort.”

The Court listed seven detriments faced by women unable to abort their babies; only one applied directly to carrying a child in the womb. The rest were concerned with the challenges of raising children. In the words of Justice Douglas, it is the birth of the child, not pregnancy itself, which might “deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future.” Heaven forfend!

The difficulties of childrearing corresponding with the birth of children, the Justices could hardly leave it at that. To read how they moved from these abiding difficulties to the new legalization of abortion on demand, consult Professor Bradley’s essay.


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