Is Roe v Wade Bunk?

Supreme Court

In a 1916 interview, Henry Ford told Chicago Tribune reporter Charles N. Wheeler, “History is more or less bunk. It's tradition. We don't want tradition. We want to live in the present and the only history that is worth a tinker's dam is the history we make today."

Historians vehemently disagree, but there is a gathering consensus that Roe v Wade is larded with historical bunk. Even former Justice Ruth Bader Ginsberg, Antonin Scalia’s antagonist on the Supreme Court, thought Roe was poorly argued.

In a piece on abortion enticingly titled The Corruption of History, Senior Editor of National Review Ramesh Ponnuru has this to say about Roe v Wade’s slipshod scholarship:

“To a greater extent than even most of its opponents realize, the reign of Roe v. Wade has relied from the very beginning on a false and sometimes fraudulent version of history. Justice Harry Blackmun’s majority opinion repeatedly cited slipshod scholarship that was already in the process of being discredited in 1973 and has since been comprehensively de­bunked. The Sup­reme Court has, however, never revisited its mistaken historical claims, which have instead taken on a life of their own in academic work, popular journalism, and legal briefs.”

Justice Blackmun relied heavily on the notion, circulated widely during the 1960s, that “abortion had been a common-law liberty at the time of the American founding and for many decades thereafter, and that when states outlawed abortion in the mid-19th century they did so out of concern for its dangerousness to mothers rather than to protect unborn lives.”

That notion, propounded by abortion activist Cyril Means Jr., flies in the face of material fact and easily obtained historical documentation. One of the junior members of the Roe team, Ponnuru tells us, “observed in a memo that Means’s conclusions sometimes ‘strain credibility’ and that he was willing to ‘fudge it as necessary.’”

The fanciful documentation supporting Roe was, to put it bluntly, historically subversive, and it has produced an unreliable historical mythology.

“Blackmun,” Ponnuru writes, “cited Means in six of Roe’s footnotes, using the activist’s historical inventions as his principal evidence that abortion may have been allowed at the time of the Founding and that later restrictions may not have been designed to protect unborn lives. These were building blocks of Blackmun’s argument that unborn children did not qualify for the protections of the 14th Amendment as ‘persons,’ that abortion itself was a liberty rooted in American tradition, and that laws to protect unborn children are unconstitutional.”

These propositions are not merely doubtful – they are untrue.

Over the weekend, a first draft “decision” by the Supreme Court had been leaked to Politico, and the unadjusted decision – first draft decisions by the Court are usually amended over a period of months before a decision is published – has excited pro-abortion advocates and a media that in the past has not been willing to acknowledge decisive objections to Roe, even when they are voiced by progressive jurists such as Ginsberg.

“The draft opinion,” Politico reported, “is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. ‘Roe was egregiously wrong from the start,’ Alito writes.

“’We hold that Roe and Casey must be overruled,’ he writes in the document, labeled as the ‘Opinion of the Court.’ ‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.’”

If the Court is able to maintain its equipoise against the coming tsunami of anticipated left-field assaults, only a few of which will address the Court’s legitimate juridical concerns, and its first draft decision is permitted to stand, abortion in the United States will not be rendered illegal. The decision-making power on abortion matters will be returned to the states and invested in state legislatures. The court is here striking down a prior decision. To put it plainly, the Supreme Court is righting a wrong decision. Despite all the media frothing, the Court has not aimed a fatal blow against the practice of abortion.

Because the Court’s draft decision has been untimely issued, no doubt by a grudge-keeper who profoundly disagrees with the thrust of the decision, the court will be disagreeably jostled until its final decision is made – one hopes sooner rather than later.

In the meantime, it seems only fair to allow the Supreme Court to be the Supreme Court. If the Court does adjust a decision it has deemed deeply defective, it will not be the first time the Court has swallowed crow. The Dred Scott v. John F.A. Sandford decision was not the Court’s finest hour.  It is now generally agreed that “Chief Justice Roger Brooke Taney’s opinion for the Court was arguably the worst he ever wrote. He ignored precedent, distorted history, imposed a rigid rather than a flexible construction on the Constitution, ignored specific grants of power in the Constitution, and tortured meanings out of other, more-obscure clauses.”

Perhaps we can all agree that it should not take a Civil War to correct Supreme Court decisions, and it is by no means inappropriate that the Court should be allowed to correct prior imprudent rulings.