I will do a much longer piece about the myths surrounding Roe v. Wade, a remarkable number of which are contained in this column. Leaving aside the policy questions, however, it’s worth noting the sheer number of factual howlers McArdle throws out there:
The decision itself is a poorly reasoned mess. It failed to mount a convincing case that the Constitution contains language that can be read as guaranteeing a woman’s right to abort her pregnancy. Nor have the subsequent courts that amended and extended Roe managed to come up with a constitutional justification; it’s all “emanations and penumbras” and similarly float-y language that did little to convince opponents that Roe v. Wade was a good or necessary ruling.
Leaving aside the fact that “emanations and penumbras” metaphor describes a perfectly banal concept, Roe doesn’t rely on this holding; it relies on substantive due process. This is a pretty big mistake to make when you’re critiquing a cases’s legal reasoning.
I think there’s also room for doubt that McArdle believes that Supreme Court opinions are legitimate only if everyone finds them convincing.
That poor drafting quasi-accidentally left America with some of the most permissive abortion laws in the world, far beyond what most legislatures would permit if the matter were open to public debate. Today, the United States is one of only a handful of countries to allow elective abortions after the 20th gestational week.
1)The idea that America’s abortion laws are uniquely permissive is nonsense. 2)Roe’s trimster framework HAS NOT BEEN THE APPLIED TO THE STATES SINCE 1992.
One might even argue that Roe has frozen American politics in a sort of a time warp, because for almost five decades no one has had to do the hard work of specifying when, and under what conditions, abortion should be legal.
The idea that there have been no debates over abortion legality in the United States since Roe is absolutely insane.
With the Supreme Court having, in effect, written abortion law covering the first two trimesters of pregnancy, offering an opinion about abortion is costless.
Most abortion regulations passed in the United States APPLY AT EVERY STAGE OF THE PREGNANCY. The way these contrarian arguments act as if the term limit is the only regulatory issue at stake is bizarre.
Somewhat paradoxically, the way to make abortion less contentious is to throw the matter back to the states so that people can argue about it.
The idea that abortion will not be a federal issue if Roe is overruled is transparently false. In fairness, this is a pretty obscure — to find the last time the House of Representatives passed abortion legislation you’d have to go all the way back to 2018.
But, hey, if someone with absolutely no idea what she’s talking about thinks overruling Roe will be no big deal, I’m sure she’s right!