Why Roe v. Wade is a travesty of constitutional law

The prospect of overturning Roe v. Wade will be at the foreground of the battle over Justice Anthony Kennedy’s replacement, and it should be.

Roe is judicially wrought social legislation pretending to the status of constitutional law. It is more adventurous than Miranda and Griswold, other watchwords of judicial activism from its era. It is as much a highhanded attempt to impose a settlement on a hotly contested political question as the abhorrent Dred Scott decision denying the rights of blacks.

It is, in short, a travesty that a constitutionalist Supreme Court should excise from its body of work with all due haste.

Roe has been commonly misunderstood since it was handed down in 1973, in part because its supporters have been so determined to obscure its radicalism. It is commonly thought that Roe only prohibits restrictions on abortion in the first trimester, when it effectively forbids them at any time, imposing a pro-abortion regime as sweeping as anywhere in the advanced world.

The confusion arises from the scheme set out in the majority opinion, written by the late Justice Harry Blackmun.

More