The Corner

Law & the Courts

47 Marches Later, Roe Is Still Indefensible

Pro-life demonstrators carry a banner outside the Supreme Court during the 47th March for Life in Washington, D.C., January 24, 2020. (Kevin Lamarque/Reuters)

Today was the 47th annual March for Life in Washington. Thousands of Americans gathered from across the country to protest the scourge of legal abortion christened by the Supreme Court’s 1973 decision in Roe v. Wade. The intensity of the March is, in no small part, a response to the gall of the Burger Court, which took it upon itself to remove the abortion question from the democratic process through — to be more charitable than Roe‘s Justices deserve — a tendentious understanding of the Constitution’s implied privacy rights.

To be less charitable — and more honest — the Court’s decision was and remains legally indefensible. No reasonable person alive during the Founding era understood the Ninth Amendment, a basic recitation of the natural law, to include a right to kill an unborn child. To so torture the Ninth and 14th Amendment as to “discover” a “right” lurking deeply therein is to make a mockery of the constitutional law and the federal judiciary. Indeed, as the late pro-choice legal scholar John Hart Ely wrote, Roe “is bad 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.”

Today’s Court is under no obligation to pretend otherwise.

“When faced with a demonstrably erroneous precedent,” Justice Clarence Thomas wrote in his concurrence in Gamble v. United States, “my rule is simple: We should not follow it.”

One hopes, if in vain, that the nine judges currently sitting on the Court see today’s March for Life as a definitive rebuke of their imperious predecessors. Few decisions in American history have been more “demonstrably erroneous” than Roe.

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