Bench Memos

Law & the Courts

Some Thoughts on Overruling Roe

1. For reasons I explained more fully in my Senate Judiciary Committee testimony in 2005, I believe that the case for overruling Roe v. Wade and Planned Parenthood v. Casey is overwhelming. Here is an excerpt:

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.

See part 2 of that testimony for some devastating criticisms of Roe from liberals who support a right to abortion.

2. The wave of protective pro-life legislation demonstrates that Planned Parenthood v. Casey’s effort to preserve Roe has failed. As Harvard law professor Adrian Vermeule succinctly explained in a tweet the other day (my underlining):

The premise of Planned Parenthood v. Casey was that the Court’s abortion jurisprudence could succeed in “call[ing] the contending sides of a national controversy to end their national division.” Doesn’t seem to have worked. Casey fails its own test.

3. We often hear from the Left pleas for “judicial statesmanship” to preserve liberal precedents. But real judicial statesmanship would be for the liberals on the Court to recognize that Roe is a dismal failure and to forge a unanimous ruling against it.

4. All the clamor over the Alabama and Georgia laws ignores that there are certiorari petitions pending before the Court right now that provide the opportunity to erode or overrule Roe.

One petition (which the Court has been sitting on for months now) presents the questions (1) whether a state may require health care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus.

Another presents the question whether a state may require an ultrasound at least eighteen hours before an abortion.

And yet another challenges a Fifth Circuit decision that upheld a Louisiana law that requires physicians who perform abortions to have admitting privileges at a local hospital. This is the law that the liberal justices, together with the Chief, blocked from taking effect, so it’s a safe bet that certiorari will be granted in the case.

5. Any justices who recognize that Roe should be overruled but who are waiting for just the right occasion to do so are fooling themselves. There will never be a perfect time, and stretching things out unnecessarily just means that the Court will be a fat political target. That doesn’t mean that the Court necessarily needs to overrule Roe at the first opportunity, but it shouldn’t shy from the challenge.

Most Popular

Elections

The 24 Democrats

Every presidential primary ends with one winner and a lot of losers. Some might argue that one or two once-little-known candidates who overperform low expectations get to enjoy a form of moral victory. (Ben Carson and Rick Perry might be happy how the 2016 cycle ended, with both taking roles in Trump’s cabinet. ... Read More