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On the 40th Anniversary of Roe v. Wade



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On this 40th anniversary of the Court’s terrible decision in Roe v. Wade, I will restate a passage from my 2005 testimony before the Senate Judiciary Committee:

Roe v. Wade marks the second time in American history that the Supreme Court has invoked “substantive due process” to deny American citizens the authority to protect the basic rights of an entire class of human beings. The first time, of course, was the Court’s infamous 1857 decision in the Dred Scott case (Dred Scott v. Sandford, 60 U.S. 393 (1857)). There, the Court held that the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, could not constitutionally be applied to persons who brought their slaves into free territory. Such a prohibition, the Court nakedly asserted, “could hardly be dignified with the name of due process.” Thus were discarded the efforts of the people, through their representatives, to resolve politically and peacefully the greatest moral issue of their age. Chief Justice Taney and his concurring colleagues thought that they were conclusively resolving the issue of slavery. Instead, they only made all the more inevitable the Civil War that erupted four years later.

Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.

So long as Americans remain Americans—so long, that is, as they remain faithful to the foundational principles of this country—I believe that the American body politic will never accept Roe.

Of course, whether Americans will indeed remain faithful to our country’s foundational principles is far from clear.

My full testimony is available here.



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