The Corner

Law & the Courts

‘Roe’ v. Reality

Abortion supporters and pro-life advocates demonstrate on the anniversary of the Supreme Court’s 1973 Roe v. Wade decision, Washington, D.C., January 24, 2011. (Jim Young/Reuters)

On the Economist’s “Intelligence” podcast, one of that venerable newspaper’s contributors described Justice Amy Coney Barrett as indicating by her questions that she does not “believe that a constitutional right to abortion is justified or needed.”

That may be true. But there is a prior question here that needs to be addressed — not whether there should be a constitutional right to abortion but whether there is one. The question is not whether such a right is justified or needed but whether it exists as a matter of law.

The contention of Roe critics is not necessarily or not exclusively that abortion is a great evil (it is a great evil) but that Roe is an illegitimate decision, having no actual basis in the Constitution. Illegitimate precedent gets no deference — that is why Plessy is no longer the law of the land. That Roe is an abuse of judicial power is something that honest analysts admit, including honest advocates of abortion rights. The question of whether Roe is legitimate does not depend on your view of abortion as such.

If abortion-rights activists believe there should be a right to abortion in the Constitution, then they should work for an amendment. If we imagine that limiting or prohibiting abortion would be a grave injustice (it would not), that fact alone would not create a constitutional right. Slavery was a grotesque injustice — and it took a constitutional amendment to abolish it as a matter of law. Slavery was always evil, but it wasn’t unconstitutional until the 13th Amendment made it so.

What the law should say is a question for legislators. The question for judges is what the law says.

And what the Constitution actually says about abortion is . . . nothing. If the Supreme Court does its job (never a sure bet, unfortunately) then abortion-rights advocates will still have the opportunity to argue that there should be legal protection for abortion rights. They’ll have the chance to argue for their position in every state legislature and, if it comes to a constitutional amendment, in Congress. The people who call themselves Democrats will have many opportunities to submit their position to the judgment of the people as part of the democratic process.

Progressives have grown too used to having the federal courts do their political work for them. As Barack Obama once put it: Try winning some elections.

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