Bench Memos

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O’Connor on Roe


The same Washington Post article today that I discuss here and here asserts that Justice O’Connor “has been a steady voice for preserving Roe.” Oh, really?

In 1983, in her dissent in Akron v. Akron Center for Reproductive Health, O’Connor directly criticized Roe: “neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies according to the ’stages’ of pregnancy, where those stages, and their concomitant standards of review, differ according to the level of medical technology available when a particular challenge to state regulation occurs.” “The Roe framework,” she said, “is clearly on a collision course with itself.”

In 1986, in her dissent in the Thornburgh case, O’Connor powerfully stated:

“This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but – except when it comes to abortion – the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it. That the Court’s unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade.” (Citations omitted.)


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