Roe v. Wade: Bad Judging

It's my understanding that the tiny person at left got here safely. Lots of others have not. Abortion is such an emotional subject that we often forget to discuss the simple legal question: Wasn't Roe v. Wade a deeply flawed decision?

If, like me, you think it was, you'll find this article by Tim Carney interesting. Among other bits of interesting analysis, Carney quotes scholars and commentators who are pro-abortion (or "pro-choice," if you prefer that terminology) but who also admit that Roe represented terrible Constitutional jurisprudence:

"One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Laurence H. Tribe, "The Supreme Court, 1972 Term--Foreword: Toward a Model of Roles in the Due Process of Life and Law," 87 Harvard Law Review 1, 7 (1973).

"As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather." Edward Lazarus, (former clerk to Harry Blackmun) "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them," FindLaw Legal Commentary, Oct. 3, 2002

"Blackmun's [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference." William Saletan, "Unbecoming Justice Blackmun," Legal Affairs, May/June 2005.

"What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it. . . . At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking." John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," 82 Yale Law Journal 920, 935-937 (1973).

Roe "is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply." Benjamin Wittes, "Letting Go of Roe," The Atlantic Monthly, Jan/Feb 2005.

Richard Cohen's critique, in which he called Roe "a bad decision," was in his Post column, titled "Support Choice, Not Roe."

Alan Dershowitz attacked Bush v. Gore as illegitimate by likening it to Roe in his book, Supreme Injustice. He wrote that the two decisions "represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes[.] Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)[.] [C]lear governing constitutional principles . . . are not present in either case." (p. 194).

The whole thing's worth a read.