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Abortion, U.S. Supreme Court, White Papers

A Survey of Judicial and Scholarly Criticism of Roe v. Wade Since 1973: Legal Criticism and Unsettled Precedent

There is a wide-spread myth that Roe v. Wade is settled and entitled to respect as judicial precedent. The purveyors of that myth must ignore the U.S. Supreme Court’s decisions going back to the earliest days of the Court which point to judicial criticism and legal-scholarly criticism as keeping prior decisions unsettled. Most importantly, they must ignore four decades of detailed, comprehensive, and specific judicial and scholarly criticism of Roe v. Wade. Because Roe has never been settled, it is entitled to no respect as precedent. In fact, because Roe is radically unsettled, long-standing principles of precedent (stare decisis et quieta non movere) dictate that it must be reconsidered.

Introduction

Writing in the 1920s, between his two terms of service on the U.S. Supreme Court, Justice Charles Evans Hughes “referred to the decision in Dred Scott v. Sandford as one of three notable instances in which the Court suffered severely from self-inflicted wounds.” (The other two decisions Hughes cited were the Legal Tender Cases (Hepburn v. Griswold) and the Income Tax Cases (Pollock v. Farmers’ Loan & Trust Co.).) The Supreme Court’s 1973 decision in Roe v. Wade has arguably eclipsed Dred Scott and all other cases in its negative impact on the Supreme Court and the Nation. Roe v. Wade (and the companion decision in Doe v. Bolton) is the most controversial decision ever issued by the Supreme Court in its 233-year history. Roe is more controversial than Dred Scott v. Sanford. The negative legal impact of Dred Scott was virtually eclipsed by the passage and ratification of the Fourteenth Amendment in 1868. Roe, by contrast, has been the subject of sustained criticism from Justices, judges and scholars for nearly five decades, and has collided with an increasing number of State governors and legislatures, as reflected in the more than forty cases (as of this writing) challenging state abortion limits that are working their way through the federal court system. 

By centralizing control of the abortion issue in American society, Roe has negatively impacted national politics and the Supreme Court nomination process for almost a half century. The Roe opinion was extraordinarily weak—“probably the weakest of any major decision in American history,” according to one scholar—and subjected to severe criticism from major constitutional scholars for two decades leading up to the Court’s Casey decision in 1992. 

Roe created at least three constitutional conflicts: Congress’ debate over pro-life constitutional amendments between 1973 and 1983, the dispute between Congress and the Court over abortion funding that induced the Court to retreat a few years after Roe in Harris v. McRae, and the ongoing 48-year tension between the Court and a growing number of States that are determined to protect human life. 

Because Roe is arguably the most controversial Supreme Court decision ever, the critical commentary over nearly fifty years has been vast. It can be found in Supreme Court decisions, federal and state court decisions, and Congressional and state legislative hearings, in addition to many scholarly publications, popular journals, and online sources. This compilation seeks to explore what the controversy over Roe is all about, why the negative reaction to Roe has been so strong, and why it has endured for nearly half a century. 

These criticisms have come, year after year, from Justices, other federal judges, and leading legal scholars, and they have endured and multiplied, addressing virtually every point of law, fact, and reasoning in Roe v. Wade. In addition, as time passes and experience with Roe and its abortion “right” expands, the criticism has broadened as well, reflecting the impact of the Court’s hegemony over the issue and its experience affecting Americans and American society. 

In 1992, three Justices (the plurality) tried to entrench Roe in the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. That attempt to fix and secure Roe has also been harshly criticized by Justices and scholars. In contrast, the basic defense of Roe has been to ignore Justice Blackmun’s opinion in Roe, and instead defend the Court’s Casey decision as a successful vindication of the “right” to abortion. Today, defending Casey is the primary means of defending Roe. The effort by abortion advocates is not to defend the Roe opinion but the result: a “right” to abortion, however rationalized. The Casey plurality attempted to replace the “P” word (privacy) with the “L” word (liberty) and to argue, based on two pages from Rosalind Petchesky’s 1990 book, Abortion and Women’s Choice, that women need abortion for equal opportunity in American society. Casey is no more sophisticated than that. That’s the pillar on which the Court imposed Roe for another twenty-nine years. 

Casey failed. It didn’t provide any better justification for the Court’s decision than Roe provided, and it didn’t settle the controversy. Casey merely created a temporary lull of several months, until the States began to enact informed consent laws in the 1993–94 state legislative sessions and partial-birth abortion was thrust to the center of national debate in Congress in early 1995. 

And Casey itself has been unsettled by a series of flip-flops in which the Court has changed the standard of review for abortion regulations across nearly thirty years. Today, Roe and Casey remain radically unsettled, and two of the most important factors contributing to the Court’s failure to settle the abortion issue are judicial and scholarly criticism, which show no signs of abating. 

The Supreme Court has reversed itself more than 230 times over its history, and in numerous cases those reversals have come in response to judicial dissents and scholarly criticism. Law and judicial opinions have often been open to change in response to reasoned criticism, the test of experience in a rule’s application and acceptance, and more persuasive ideas. In the spirit of optimism that this process will soon lead to a thoughtful reexamination and repudiation of this badly misguided precedent, Americans United for Life offers the following compilation and summary of the leading critical analyses, judicial and academic, of the Supreme Court’s opinions in Roe, Doe, and Casey.