In an editorial yesterday evening the Washington Post staked out an official stance against the possibility of overturning Roe v. Wade. That much is unsurprising; I’ve written before about the Post’s consistent advocacy for unlimited abortion.
But this editorial was especially egregious, arguing that the Court “might never recover” from a decision striking down Roe and Casey because to do so would undermine its stability, neutrality, and legitimacy:
In his draft, Justice Alito points out that the court has overturned many cases in the past, including the atrocious Plessy v. Ferguson, which permitted racial segregation. But the court has never revoked a fundamental constitutional right. Overturning Plessy expanded liberty. Overturning Roe would constrict liberty — and be a repugnant repudiation of the American tradition in which freedom extends to an ever-wider circle of people.
The key sentence here is: “But the court has never revoked a fundamental constitutional right.” This is question-begging of the highest order.
The entire argument about whether to overturn Roe hinges on the question of whether there’s a “fundamental constitutional right” to abortion. Ignoring this, the Post merely assumes that such a right exists and, from this assumption, argues that the Court would err by doing away with it. Legal scholars in the decades since Roe, including those who support abortion as a policy matter, have acknowledged again and again the shoddy history and flawed legal reasoning on display in Roe, and Alito’s draft opinion chronicles those many errors.
Far from undermining the Court, a decision to undo Roe would restore the institution’s legitimacy, acknowledging for the first time in 50 years that seven justices willfully invented a “fundamental constitutional right” that simply never existed.