The Corner

Law & the Courts

Yes, Overturn Roe

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)

Of course the Supreme Court should take the first opportunity to throw out Roe v. Wade. It is an indefensible decision and always has been.

Throwing out Roe would not mean banning abortion. It would not even necessarily mean restricting abortion. Roe is a bad legal decision not because of any moral question related to abortion but because it is bad law. The Constitution does not say anything about abortion one way or the other, and it does not contain any provision that could reasonably be interpreted as mandating abortion rights or prohibiting abortion. The Constitution has no more to say about abortion than it does quantum physics. And the Founding Fathers knew where babies come from — if they had wanted to put something in the national charter relating to pregnancy, they could have done so.

A situation in which abortion is prohibited absolutely and everywhere in these United States would be entirely consistent with the Constitution. So would a situation in which there are no restrictions on abortion at all. This is a matter for legislators, not a matter for judges.

The question of precedent should not give the justices too much anxiety. Roe is bad law, a political preference imposed for political reasons through a flimsy constitutional rationale made up out of whole cloth. This is obvious to many honest-minded people, including some pro-choice constitutional scholars. An honest person can simultaneously believe: (1) that the right to abortion should be legally guaranteed and (2) that the Constitution says nothing about this. Precedents that are obviously pretextual deserve no deference. In fact, the Supreme Court’s duty is precisely the opposite in cases such as these. The actual law should always take precedence over the fictitious law, even if the fiction was authored by a gentleman in a black robe.

Because the Constitution is silent on abortion, a post-Roe order would be established legislatively. Put another way: Post-Roe, the law would be made by the lawmakers. That would probably mean that Oklahoma and Utah will end up with abortion laws that are very different from those of California and New Jersey. As a constitutional matter, that is appropriate — it is, in fact, how things are supposed to be: We have 50 different states for a reason.

Black ceremonial robes notwithstanding, the Supreme Court is not supposed to function as an Iranian-style guardian council keeping the state and society within certain moral guardrails. The Supreme Court is there to interpret the law — which is written down for a reason. We write the law down so that we don’t have to renegotiate the rules from scratch every time there is a disagreement and so that powerful people cannot simply dictate to the less powerful what is permitted and what is not. If the abortion-rights advocates want to have a constitutional right to abortion inserted into the Bill of Rights, we have a constitutional-amendment process for such purposes. Get to work.

Overturning Roe would not be a lasting victory for the pro-life side or a lasting defeat for the pro-abortion side. It is entirely possible that Roe could be overturned and that in 20 years we have even more permissive abortion laws than we have today. I wouldn’t put it past us. No-fault divorce wasn’t forced on the American public by left-wing activists — it was enacted by popular demand to popular acclaim.

Most Americans support access to abortion early in pregnancy and support restrictions late in pregnancy. Democracy is an unpredictable thing, but it is likely that a democratic settlement on abortion — something that the United States has not had in five decades — would to some considerable extent reflect those preferences.

The case against Roe is not that abortion is a great evil. The case against Roe is that it is bad law. That is all the Supreme Court is bound to consider.

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