In a New York Times column published Tuesday, Bret Stephens argued that while Roe v. Wade was “ill-judged” when decided in 1973, overruling it today would be “a radical, not conservative, choice.”
His premises and conclusion are both wrong.
In a 2005 interview, then-Supreme Court Justice Antonin Scalia stated, “I do not think the Constitution, or any text, should be interpreted either strictly or sloppily. It should be interpreted reasonably.”
Reasonable interpretation, he explained, requires giving “the text the meaning it had when it was adopted.”
Similarly, the Supreme Court overruling one of its previous decisions cannot simply be labeled “radical” or “conservative,” but must be evaluated on its own merits.
Stephens quickly gets himself in a bind by using a generic definition of “conservative.” Abrupt and profound changes to “established laws and common expectations,” he writes, “are utterly destructive to respect for the law and the institutions established to uphold it—especially when those changes are instigated from above, with neither democratic consent, nor broad consensus.”
While he wants to apply that to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization on whether to overrule Roe, it would be hard to find a more apt description of Roe v. Wade itself.
Roe v. Wade was a colossal failure of the judicial task, as Justice Clarence Thomas has explained it, to “interpret and apply written law to the facts of particular cases.”
It’s not that the court went through the interpretive process, but came to the wrong conclusion. In Roe, the court did not attempt to interpret the 14th Amendment at all, but simply claimed that it includes a right to abortion.
Roe v. Wade literally has no constitutional foundation, and the court even conceded that it had no connection to precedent because the presence of the unborn child makes abortion “inherently different” than any other privacy-related right.
Instead, Roe sits on a foundation of pure policy. In the very next sentence after announcing the right to abortion, the court in Roe described what it considered “[t]he detriment” that would follow from banning abortion.
Roe effectively struck down the abortion laws of all 50 states, many more than a century old.
The abortion policy that the Supreme Court imposed on the country in Roe is far more permissive than anything that existed during centuries of common law or statute, either in America or Great Britain. It is more permissive than all but a handful of nations anywhere in the world.
Even after 50 years of relentless propaganda about “choice,” a large and consistent majority of Americans believe that most of the abortions that Roe legalized should remain illegal.
What could be a more “abrupt and profound change to established laws and common expectations” than that?
The Supreme Court imposed an unprecedented national policy of virtually unrestricted abortion that no legislature had ever chosen and that only a small minority of Americans has ever supported.
By purporting to do so in the name of the Constitution, the court shut down the work of two centuries of state legislatures reflecting the views of their residents on the subject.
That’s true even though there will be attempts to pass legislation, such as the misnamed Women’s Health Protection Act, which would promote abortion even more so than the Supreme Court did In Roe.
The court should neither step outside of its proper role, as it did in Roe, to promote a policy agenda, nor abandon its established method of deciding whether one of its precedents is no longer valid.
The first step is easy, determining whether the precedent was correctly decided. In the case of Roe v. Wade, the answer is a resounding “no.” Roe was not merely “ill-judged,” as Stephens soft-peddles it.
No other Supreme Court decision has been more soundly criticized, thoroughly discredited, and exposed as utterly fraudulent. The harshest criticism, in fact, has come from scholars who acknowledge they think abortion should be legal.
Law professor John Hart Ely, for example, wrote in 1973 that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
Three decades later, law professor Kermit Roosevelt wrote, “Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.”
Law professor Mark Tushnet acknowledges that most constitutional scholars favor abortion rights, but that none has been able to show “that the Supreme Court correctly found that [abortion] policy in the Constitution.” They have stopped even trying.
The court will next consider various factors, in essence to determine whether the costs outweigh the benefits of keeping such an utterly disreputable decision on the books.
The Dobbs draft opinion that was leaked discusses several of those, including the nature of Roe’s error, the quality of its reasoning, and its workability. Roe v. Wade fails abysmally on all fronts.
Since that original decision, the Supreme Court has wrestled with more than two dozen abortion cases that have produced nearly 90 majority and separate opinions. Roe’s original 7-2 vote dwindled to 5-4 when the court reaffirmed its “general principles” in 1986 and, in 1992, only five justices could support Roe’s “central holding” or “essence.”
The Supreme Court has overruled its own precedents more than 200 times. To be sure, most of those were not as incendiary or volatile as Roe v. Wade. Neither, however, were they as deeply flawed and universally condemned as Roe.
Overruling that decision will not be, as Stephens would have it, either “radical” or “conservative.” It will simply be correct.
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