Bench Memos

Roe‘s Lone Remaining Defender Nominated to Ninth Circuit?

After Justice Blackmun’s death more than a dozen years ago, I hadn’t realized that there was anyone left who would defend the actual reasoning (if that term isn’t wholly out of place) of Roe v. Wade. As I’ve documented (in point 2 here), even liberals who support a right to abortion condemn Roe in scathing terms. As one of Blackmun’s former clerks (“who loved Roe’s author like a grandfather”) put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” And:

Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.*

In the decades since Roe, a cottage industry of legal academics has been busy trying to explain how its result could be justified by other reasoning.

So it’s a very unpleasant surprise to discover that perhaps the lone remaining defender of Roe has been nominated by President Obama to a Ninth Circuit seat. Andrew D. Hurwitz, whose confirmation hearing took place yesterday, celebrates in this law-review essay from a decade ago the “crucial influence” that the abortion opinions issued by Judge Jon O. Newman in 1972 had on “the outcome and the reasoning” in Roe. Hurwitz, who was a law clerk for Newman at the time, contends that Newman’s “careful and meticulous analysis of the competing constitutional issues” was reflected in “almost perfect lockstep” in Roe.

From Hurwitz’s account, Newman’s “careful and meticulous analysis” included the inability to differentiate between an “unfertilized ovum” (emphasis added) and a “fetus”—an inability that Hurwitz apparently shares. Hurwitz likewise contends that Newman “candidly conceded that a court could never resolve the philosophical issue of whether a fetus was a human being from the moment of conception.” But that’s not a candid concession; it’s a deep confusion, as the relevant field of knowledge—biology—quite clearly resolves that non-philosophical issue. And Hurwitz also credits Newman’s “sweeping dictum” on viability for ultimately influencing Blackmun to “effectively double[] the period of time in which states were barred from absolutely prohibiting abortions.” (Even that phrasing obscures the fact that under the predominant reading of Roe’s companion case of Doe v. Bolton, abortion is essentially unrestricted even in the period from viability until birth.)

The careful reader will discover that Hurwitz isn’t just praising Newman. As he coyly discloses (in footnote 55), Justice Stewart engaged in only “some exaggeration” when he referred to Hurwitz as “the clerk who wrote the Newman opinion.”

* Oddly, this quote appears to have been scrubbed from the essay I cited. But Wikepedia’s entry on Roe is among numerous sources that provides the same original citation I did.


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