Marking the Fortieth Anniversary of Roe v. Wade Part One: Where Three Common Criticisms Go Wrong

This is Part One in a two-part series of columns by Professor Dorf.  Part Two will appear here on Justia’s Verdict on January 23, 2013. –Ed.

Tuesday, January 22, 2013, will mark the fortieth anniversary of Roe v. Wade, the Supreme Court ruling that recognized a constitutional right of a woman to have an abortion. What lessons can we learn from the case and the ensuing years?

In this, the first of a two-part series on Roe, I consider three common criticisms of the ruling: (1) that the constitutional text nowhere mentions abortion; (2) that the original meaning of the Fourteenth Amendment did not encompass a right to abortion; and (3) that the courts ought to stay out of socially divisive issues.

I explain why the arguments based on each of these claims are misguided and potentially dangerously so: Misunderstanding what made Roe a controversial case may mislead lawyers and Supreme Court Justices in their thinking about other controversial social questions, like those raised about same-sex marriage in the cases now pending before the high Court.

In the second column in this series, which will appear here on Justia’s Verdict next week on January 23, I shall consider a fourth common criticism that is sometimes voiced even by scholars and jurists who support Roe’s bottom line, most prominently Justice Ruth Bader Ginsburg: that Roe went too far too fast. Although it is impossible to know how events would have transpired in the counterfactual world that this criticism invokes, I will suggest that it too is probably wrong.

Misguided Argument Number One: The Constitution Doesn’t Mention Abortion

Critics of Roe sometimes say that the Constitution does not mention abortion, and that therefore the regulation of abortion is left to the political process. Yet the Constitution does not—in so many words—mention other rights that we take for granted as encompassed within the general language of broader provisions.

For example, the Constitution does not specifically mention movies but the courts have little difficulty seeing them as protected by the First Amendment. Likewise, the Equal Protection Clause of the Fourteenth Amendment does not use the words “race,” “sex” or “religion,” but courts rightly invalidate most laws discriminating on those grounds.

So, what general language encompasses the right to abortion? The best textual answer would point to the Ninth Amendment, which says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Under the most straightforward reading, that language says that there are unenumerated rights that limit the federal government.  Moreover, a provision of the Fourteenth Amendment tells state governments that they may not “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” which, under a similarly straightforward reading, binds the state governments to respect the same rights, including the unenumerated rights, that limit the federal government.

For historical reasons, however, the Supreme Court did not locate the abortion right in the Ninth Amendment or the Privileges or Immunities Clause. Instead, the Court in Roe held that the “liberty” encompassed by the Due Process Clauses of the Fifth and Fourteenth Amendments includes the freedom to choose to have an abortion prior to fetal viability.

Sticklers have long objected to the doctrine of “substantive due process” that was used in Roe, but their real quarrel is with the Court, rather than the Constitution. The actual text—in the Ninth Amendment and the Privileges or Immunities Clause— provides a sound basis for the recognition of rights that are not expressly mentioned.

Thus, critics of Roe who invoke the Constitution’s supposed silence on abortion must be prepared to jettison much more than abortion rights. The Court found an unenumerated right of married couples to use contraception in 1965 in Griswold v. Connecticut. Must that right also go? And if the failure of the Constitution to use the word “abortion” means that Roe is wrong, then there would also be no constitutional basis for resisting a law that required a woman to have an abortion. The pro-lifers who denounce Roe cannot be happy with that consequence.

Misguided Argument Number Two: The Original Meaning of the Fourteenth Amendment Did Not Encompass a Right to Abortion

Another critique of Roe asserts that it fails to respect the original understanding of the Fifth Amendment (ratified in 1791) or the Fourteenth Amendment (ratified in 1868). This argument rests on the false premise that contemporary constitutional rights must be grounded in original understanding, narrowly understood.

As I explained in a recent column, very few scholars or judges who call themselves “originalists” consider themselves bound by the subjective intentions and expectations of the people who proposed and ratified the Constitution and its amendments. Those intentions and expectations are often unknowable, and even to the extent that they can be known, they were not enacted. Only the text was enacted—and as we have seen, the text is sufficiently capacious to encompass unenumerated rights. Once the courts are in the business of finding which aspects of “liberty” receive constitutional protection, it hardly seems unreasonable to conclude that women have a right against the government conscripting their bodies to serve as involuntary incubators for nine months.

Moreover, Justice Harry Blackmun’s majority opinion in Roe is actually more attentive to original understanding than are many constitutional rulings that we accept as clearly legitimate. The Court in Roe addresses the legal treatment of abortion throughout history, from ancient times, through medieval England, in colonial and Founding-Era America, and on into the Nineteenth and Twentieth Centuries. From this history, the Court concludes that certainly at the Founding, and even by the time that the Fourteenth Amendment was adopted, abortion was subject to less restrictive regulation than was the case in 1973, when Roe was handed down. Although that point does not show that the original understanding of the Fifth and Fourteenth Amendments necessarily protected a right to abortion, it does tend to show that an abortion right is consistent with original understanding.

Misguided Argument Number Three: The Courts Should Stay Out of Socially-Divisive Issues

A third line of criticism says that the Roe Court erred by taking sides in a divisive social controversy. Critics sometimes analogize Roe to Dred Scott v. Sandford, which declared African Americans ineligible for citizenship and helped precipitate the Civil War. But that analogy hardly supports the view that the Court ought to stay out of divisive controversies. From a modern perspective, the problem with the Dred Scott ruling is not that the Court took sides on the question of slavery in the territories, but that it took the wrong side.

We tend to lionize the Supreme Court when it ends up on the right side of history. The Court’s 1954 ruling invalidating de jure racial segregation in Brown v. Board of Education is now widely regarded as its finest hour. Yet, as Linda Greenhouse reminds us in a recent discussion of the late Robert Bork’s career, in its day and for over a decade thereafter, Brown was highly controversial. Under the Roe critics’ reasoning, that means Brown too was wrongly decided.

American constitutional history is messy. A controversial ruling may spark a backlash against the cause it embraces. Or it may serve as a moral beacon and a catalyst for an emerging movement to triumph on the field of social and political contestation.

With no crystal ball, judges should be cautious in recognizing previously unheralded rights, but not to the point of abdicating their responsibility. For while the Court has sometimes erred by invoking the Constitution to lead where the People do not wish to follow, it has also erred by shirking its duty to stand up for constitutional rights—as it did with respect to Jim Crow for the nearly six decades between Plessy v. Ferguson and Brown; during the Red Scare of the First World War and again during McCarthyism; and when it accepted the military’s forced evacuation of Japanese Americans during World War II in Korematsu v. United States. These were examples of the Court’s failing because it refused to enter a divisive controversy.

Why Roe Was Nonetheless a Hard Case

Accordingly, the three criticisms I have highlighted do not identify a problem with Roe—or if they do, they also identify a problem with numerous Supreme Court cases having nothing to do with abortion.

Roe was nonetheless a difficult case, because an unwanted pregnancy pits two very important interests against one another: the interest in the life or potential life of a fetus versus the freedom of a woman to control her own body. No legal resolution to that conflict will satisfy everyone, regardless of whether a legislature, a court, or an individual woman resolves it.

The ongoing controversy concerning Roe is a product of the high stakes from both sides’ vantage points, and the place where American public opinion has come uneasily to rest. In my next column, Part Two in this series, which will appear next week, on January 23d, I will consider whether the past forty years might have unfolded differently if the Roe Court had acted more modestly.

Podcast: Play in new window | Download