Roe Was Right (Pt.I)

Now that this argument has officially become contrarian, I will explain why Roe v. Wade was correct on the merits. Before I begin, a few things to note about my argument. First, I’m defending the outcome of the case, as opposed to the craftsmanship of the majority opinion. Second, I’m not a legal formalist; I’m not claiming that Roe is “right” in the sense that no person could reasonably disagree. Like any constitutional issue of any interest, it’s not “correct” in the sense of being unassailably true. My argument is that its outcome is plausible and carries any number of pragmatic benefits. Finally, I don’t claim that these arguments are original; they will be familiar to people who know the relevant literature. My objective is to synthesize the legal arguments in favor of Roe. The first post will discuss the extensive doctrinal backing for a fundamental right to procreative autonomy within American constitutionalism. The second will explain why this right should be applied to abortion laws. Finally, I will discuss the more pragmatic benefits of Roe.

The most common argument launched against Roe is that it was “invented” by the Court, or “comes from nothing.” In discussions in blog comment sections, liberals don’t seem to be able to respond to these arguments. And yet, they are plainly false. Rights to reproductive autonomy are deeply embedded in the American constitutional tradition, appearing within many decades of constitutional state and federal doctrine. (David Garrow’s Liberty & Sexuality provides an excellent account.) The core are three bedrock cases–Meyer, Skinner, and Griswold–that were supported by a cross-ideological spectrum of justices and are well-settled. There is simply no question that procreative autonomy is a fundamental right in the American constitutional tradition; the only question is whether it applies to abortion. As Daniel Farber* points out:

Despite the vehemence of the attacks on Roe, it seems clear that the Court was correct in classifying procreative rights as fundamental. Although these rights were not discussed specifically in connection with the fourteenth amendment, historians suggest that Republicans, who drafted and enacted the amendment, considered rights relating to the family fundamental. American society has traditionally drawn a distinction between public matters involving government and the marketplace and private matters involving the family. As Professor Cox, who believes that Roe was wrongly decided, concedes, “it is hard to think of a more fundamental invasion of personal liberty than to tell a woman that she must or may not bear a child.” As the Roe Court pointed out, a line of Supreme Court decisions going back many years had granted parenthood and procreation a fundamental constitutional status. That the Court was not simply imaginatively rewriting precedent is indicated by the number of lower court judges who had correctly anticipated Roe on the basis of similar reasoning. Popular consensus also supported the Roe Court’s recognition of the right to an abortion, with a large majority of the public favoring legalization of abortion under at least some circumstances.

There are two additional variants of this silly ahistorical argument against Roe you should be aware of:

Invoking the word “penumbra”: The most common tactic is to mock the “emanations which form penumbras” phrase. This comes, of course, from Griswold. All it means is that the presence of some constitutional rights implies the existence of other rights necessary to protect the codified ones. To argue that this method of interpretation is somehow kooky or illegitimate is simply ignorant nonsense. The structuralist interpretation of the Constitution is perfectly common, and can be seen in any number of landmarks of American constitutional law (for example, Marshall’s argument that states could not tax a national bank, as this power would allow the states to effectively nullify enumerated federal powers.) Unquestioned rights–such as the freedom to belong to political associations–are “penumbral.” The Rehnquist Court’s “sovereign immunity” doctrine is explicitly based on penumbral interpretations. And, of course, Douglas was clearly correct about Connecticut’s laws, which banned the use of contraception. If enforced vigorously, they would make the Fourth Amendment a dead letter; the state would effectively have the unlimited authority to search houses. This wouldn’t happen; instead, these laws would be sporadically and arbitrarily enforced against unpopular individuals, which of course is a textbook violation of the due process and equal protection clauses of the Fourteenth. (This is equally true of the sodomy laws struck down in Lawrence.) While there is no explicit right to “privacy” or “procreative autonomy” in so many words, it is clearly implied by the language of the Bill of Rights and the 14th Amendment. Now, of course, one can disagree with the application of structuralist reasoning in a particular case, or subscribe to a different grand theory. But to pretend that this interpretive method was invented by William Douglas in 1965, or is generally discredited, is absolutely ridiculous.

Substantive Due Process The somewhat stronger doctrinal argument against Roe is that it relies on a “substantive due process” argument; that is, that some laws by their nature are so arbitrary that they could never be enforced in a manner that could satisfy procedural requirements. I have a certain sympathy with John Hart Ely’s argument that “substantive due process” is akin to “green pastel redness.” If I were a Supreme Court justice and had the votes, I would overturn the Slaughterhouse cases and locate the right to procreative autonomy in the “privileges or immunities” clause of the 14th. Having said that, judges do not start from scratch; they work within constitutional traditions, and the tradition that some laws are too arbitrary to be constitutional even if enforced with ordinarily fair procedures is deeply embedded within American constitutionalism. Every current Supreme Court justice accepts it; the only question is to what cases is applies. While this doctrine was used by the Lochner-era court to strike down economic regulations, there’s no danger of a “slippery slope” back to this era anytime soon, and pace Robert Bork there’s nothing that logically requires one to accept Lochner of one agrees with Roe. (This point is blindingly obvious; using an interpretive theory does not commit one to previous applications of a similar theory by a different justice and a different case.)

The claim that Roe (or Griswold) were invented ex nihilo is, then, transparently wrong. One can argue against these theories with different grand theories, but the right adduced in Roe has very deep historical roots. But this fact does not, of course, end the discussion. As Farber notes, my argument about s.d.p. above cuts both ways; one can accept the general theory without believing it is correctly applied to abortion laws. Griswold and Lawrence are easy cases; Roe is not. Next, I will explain why the fundamental right to procreative autonomy should render the abortion laws of American states in 1973 unconstitutional.

*Daniel Farber. “Legal Pragmatism and the Constitution,” Minnesota Law Review (72: 1998, 1366-7.)