Roe Is the Problem

‘W hat do you think of the abortion law in Texas?” a friend asked me this morning.

I’ll tell you: I think that the question makes no sense. Properly understood, the abortion law in Texas is not really an abortion law, but a key designed to interact with one of the world’s most preposterous Rube Goldberg machines. What Texas has done is a response to what the Supreme Court has done, which is a response to what previous Supreme Courts did, which was a response to what even earlier Supreme Courts did. And all of it, right from the start, has been nonsense.

Which is to say that the core problem here is not Texas’s law, or the order it prompted, or the case law that it put at issue. The problem is Roe. The problem has always been Roe. It is not this or that law; it is not this or that precedent; it is not this or that state or legislator or governor. It’s not the trimester rule or the viability standard or the shift from strict to undue burden; it’s not the details that were presented in that case from 1991, or the circumstances in which that 2017 appeal was heard, or the judicial philosophy of the judges who heard that brief up in Pennsylvania; and it’s not this or that “ism,” either. It’s Roe. Because, legally, Roe has always been utter nonsense — and because, deep down, we all know it. In this country, there exist profound and sincerely held differences of opinion on the question of abortion — views that run from the insistence that all abortion ought to be banned without exception to the claim that abortion is a positive good that ought to be celebrated. But there does not exist a set of rival cases for Roe. Roe is a lie, a contrivance, a calculation. It is a 50-year-old imposter that has distorted our fundamental law, corrupted our politics, and damaged our Constitution. It is a gremlin.

As the pro-choice legal scholar John Hart Ely noted a few months after the decision was handed down, Roe was indefensible in every conceivable way that a Supreme Court decision could be indefensible. From whole cloth, Ely wrote, Roe created a “super-protected right” that “is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” and thus answered “a question the Constitution has not made the Court’s business.” Roe “is bad,” he concluded, “because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

It is from here that all our subsequent problems have flowed. Roe was the spider, and the resulting litigation — Doe, Casey, Whole Women’s Heath, and the rest — is the tangled web it has woven. Eventually, there will be no choice for the Supreme Court but to nuke Roe in toto, because there is no manner in which it can be plausibly amended, squared, resolved, or preserved. No further inquiry or inspired approach can possibly rescue Roe, because there was nothing to Roe in the first place. “One of the most curious things about Roe,” the pro-choice legal scholar Laurence Tribe has noted, “is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Sometimes, there really is smoke without fire.

When backed into a corner, advocates of Roe and its descendants like to talk about “democracy.” This, too, is irrelevant. The United States Supreme Court is justified in striking down a democratically enacted law when, and only when, that law conflicts with a superior democratically enacted law: namely, the Constitution of the United States. If the Constitution prohibits that law, it goes; if the Constitution does not prohibit that law, it stays. Everything else is noise. The popularity of the two provisions in question is immaterial, as are the popularity of the Court, the reputation of the Court’s staff, the broader debates over the underlying political question, and the feelings of the public toward any relevant precedents. Roe could be beloved or detested or somewhere in between, and it wouldn’t make the slightest bit of difference, because the pertinent question is whether it is juridically correct. And it is not juridically correct. It is not even juridically debatable. It is tosh.

Often, our politics demands that we engage wholeheartedly in complex, detail-laden debates. Here, our politics demands that we take out a claw hammer. Only a fool would spend his time meditating upon the fine details of a legal fiction — and, despite a manful, decades-long effort to pretend otherwise, Roe is as much a legal fiction now as it was the day it was written. In 1973, in a misguided attempt to settle permanently a thorny civic dispute, the Supreme Court abused its authority and attempted to play philosopher-king. The result was a box full of clouds. At the first opportunity, the new Court should smash that box, and, in so doing, return plenary jurisdiction over this matter to its rightful constitutional owners: We, the People.