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Getting Roe Wrong


Everyone does it. Smart, thoughtful, well-read people don’t understand the most controversial Supreme Court decision of the last generation. Take Gregg Easterbrook, for example, who is arguing that a ban on partial-birth abortion might not be an assault on Roe since Roe allows abortion to be banned in the third trimester. Easterbrook gets a few things wrong in this argument, including what Roe did. Here’s the truth of the matter:

1) A ban on partial-birth abortion would not be an assault on Roe because Roe did not touch Texas’s ban on partial-birth abortion.

2) Partial-birth abortions do not take place exclusively in the third trimester.

3) Roe has to be read in light of Doe v. Bolton, handed down the same day, which makes it clear that any third-term restrictions have to include an exception for “health” defined to include “physical, emotional, psychological, [or] familial health.” Just try prosecuting someone for committing a third-trimester abortion under that standard.

As a side note, I think it’s silly for Easterbrook to insist that third-trimester abortions are “unambiguously wrong” but that earlier abortions can be called wrong only on the basis of religious faith. He says that “some feel” that they can call first- and second-trimester abortions wrong “based on faith,” but that’s an impermissible basis for public policy. Fine, but some think that they can judge those abortions wrong based on reason. They may be wrong, but you can’t prove it by pretending that they don’t exist.


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