Americans United for Life published “Studies in Law and Medicine” in the 1970s and 1980s, spotlighting issues pertaining to the human right to life across the bioethics spectrum. As Americans United for Life celebrates our 50th anniversary, we are making these issues available for the first time since their print publication.
Two Ships Passing in the Night: An Interpretavist Review of the White-Stevens Colloquy on Roe v. Wade by Dennis J. Horan, Clarke D. Forsythe, and Edward R. Grant
Assessing Roe v. Wade in light of the history of abortion in Anglo-American law, it soon becomes clear that to accept that decision, one must also accept the legitimacy of “contraconstitutional lawmaking” by the judiciary—the protection of activities by the judiciary that were never previously considered as “rights” in American law, or by the framers of the Constitution, but were left to popular control through state legislatures. Roe is otherwise illegitimate if analyzed by the traditional rules of constitutional construction—the rules of interpretive review, followed by the Supreme Court from the founding through this century. The acceptance of non interpretivism, or contraconstitutional lawmaking, both justifies Roe and insulates it. It justifies Roe because it assumed the validity of the right to abortion in utilizes noninterpretivist review to protect that value through the Constitution. And it insulates Roe from criticism because the rules of construction in interpretivist review that would indicate the error of Roe are simply an irrelevance. The ideology of noninterpretivist review can ignore evidence without confronting it because evidence of the text, history, and purpose of the constitutional provision is dismissed as irrelevant. If the text, purpose, and history of the constitutional provision are irrelevant to what the Court says the Constitution protects, then a text, purpose, or history which indicates that Roe is fundamentally flawed can be merely disregarded.
This is why the Stevens-White colloquy is like two ships passing in the night. The Stevens of Thornburgh, whose interpretivist review, though incomplete, conscientiously adhered to the Constitution by faithfully relying on its text, history, and purpose. Roe will continue to be insulated from corrections as long as noninterpretivist review insulates the Court from having to examine the overwhelming evidence that abortion was never a liberty in American law or tradition.