Roe is a much-criticized decision. Most of the criticism is dead wrong.
President Donald Trump has nominated Brett Kavanaugh to the Supreme Court, which puts Roe v. Wade in serious peril. Proponents of criminalizing abortion are, and should be, pleased with this development.
But some people claiming to be in favor of abortion rights have argued that they’re also okay with Roe being overruled — on the grounds that the decision was poorly reasoned and it choked off democratic debate prematurely.
“Let Roe go,” urged Megan McArdle of the Washington Post last week, even as she explained she believed as a general principle that women ought to be free to choose abortion. This might seem like idiosyncratic contrarianism. But for many years pro-choice/anti- Roe punditry has become a genre unto itself, with columnist after columnist asserting that overruling Roe wouldn’t be that big of a deal.
Benjamin Wittes, for example, predicted in the Atlantic, in 2005, that “in the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly.” And in the same magazine Jeffrey Rosen agreed the next year, “Access to abortion wouldn’t necessarily become less widely available than it is now.”
But sometimes an argument is counterintuitive because it’s wrong, and that’s the case here. Still, it’s an argument worthy of attention. McArdle’s column serves as a useful target for analysis because it brings together in one place a lot of common fallacies about Roe, ones that will definitely be used in the coming months by opponents of legal abortion in order to minimize the effects of overruling a decision that roughly 70 percent of the public believes should be upheld. Let’s look at some of these myths in detail.
Roe is “a poorly reasoned mess,” asserted McArdle, adding that “it’s all ‘emanations and penumbras’ and similarly float-y language.” This line of argument has been echoed by other nominally pro-choice and anti- Roe pundits. “ Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion,” according to Wittes.
Opponents of Roe writing for general audiences routinely invoke the “penumbras” phrase, from Justice William O. Douglas’s opinion striking down a ban on the use or distribution of contraception in Griswold v. Connecticut, as if doing so self-evidently renders the opinion absurd. Douglas had used that phrase to defend the idea that the Constitution includes an implicit right to privacy, in at least some matters of marriage and family, and the Roe majority cited it to extend that idea to the realm of abortion.
But Justice Douglas’s observation that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” describes a perfectly banal concept: The enumeration of rights, individually or collectively, implies the existence of other rights. As Douglas himself pointed out, in Griswold, the Supreme Court has enforced a “right of association” although that phrase is not found in the Constitution, because guarantees of free speech and the right to petition the government would mean little without the right to form political associations.
Earlier this term, the Supreme Court struck down the Professional and Amateur Sports Protection Act, which prevented most states from making their own rules regarding sports gambling, based on the doctrine of “anticommandeering.” Specifically, that meant the US could not conscript state officials to enforce its own regulatory schemes. Now, the concept of “anticommandeering” is not found explicitly in the Constitution, but according to the Rehnquist Court it is implicit in the general federalist structure of the Constitution. In short, mocking the phrase “emanations and penumbras” isn’t much of an argument.
But it’s even more problematic when applied to Roe because the holding in that case does not rely on Douglas’s argument that the right to privacy is implicit in the “specific guarantees in the Bill of Rights” (i.e., the penumbras). The right to privacy, according to Justice Harry Blackmun’s opinion for the Court in Roe, should be located in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” This doctrine, generally called “substantive due process,” is that some rights are so fundamental that abrogating them is by definition a violation of the “due process of law.”
New Dealers like Douglas distrusted the doctrine because it had been used by pre-New Deal Courts to strike down economic regulations, seemingly because that’s what the justices preferred politically, but the moderate Republicans who controlled the Court in 1973 were more comfortable with the concept.
Rooting the right to privacy in the 14th Amendment is particularly significant. Justice Douglas is one of the most liberal justices in the history of the Court — an easy target for Roe ’s critics. But Blackmun was largely drawing on a theory (privacy is rooted in substantive due process) laid out in a concurrence by Justice John Marshall Harlan, in Griswold. Harlan was the Warren Court’s house conservative; that he and Douglas agreed that a right to privacy exists, if for different reasons, suggests that belief in such a right need not be narrowly partisan. (And it’s worth remembering that Blackmun, the author of the Roe opinion, was a Nixon appointee, and he was joined by two of the three other Nixon appointees.
While the opinions in Griswold may seem a little thin, that’s partly because both Douglas and Harlan had stated their views in much more detail four years earlier in their dissents in Poe v. Ullman. In that case, a majority of the court refused to hear a challenge to the Connecticut law it later struck down in Griswold, and Douglas and Harlan explained both why the Court should have taken the case — which prevented any birth control clinics from operating in the state — and ruled the law unconstitutional. Both dissents in Poe are worth reading, and provide further evidence that the right to privacy has deep roots in the American constitutional tradition. And if Griswold is right, Roe is at least plausible.
As Justice John Paul Stevens put it in a 1986 case, “There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before.”
To be clear, as with virtually all constitutional questions of any interest, reasonable people can disagree with the outcome of Roe. One can argue that in fact there are no privacy protections implicit in the Constitution, and that a statute making the use of contraceptives illegal and empowering police to search bedrooms for evidence of them raises no constitutional problems. Or one can argue that privacy doctrine is sound but not applicable to Roe because fetal life presents a unique problem.
But Roe hardly invented the idea that the Constitution created a zone of privacy for families into which the state may not intrude; in that sense, at least, it is well grounded in established doctrine.
Roe “has made it all but impossible to regulate abortion, except in the narrowest circumstances,” according to the anti-abortion National Review editor Rich Lowry. This echoes a theme of the pro-choice, anti-Roe pundits: Wittes claimed that Court had “removed the abortion question from the legislative realm.”
But this is simply false. It’s true that Roe itself forbade most regulation of abortion prior to fetal viability, which it defined as occurring after the second “trimester.” But as modified by the Supreme Court in the 1992 case Planned Parenthood v. Casey — which discarded the trimester framework — states can regulate pre-viability abortions as long as they do not constitute an “undue burden” on a woman’s right to choose.
And the Supreme Court has applied that test very loosely. Even as states have passed more and more restrictions on abortion — including “ Targeted Regulation of Abortion Providers (TRAP) laws that have forced perfectly safe abortion clinics to close – the Court struck down only one regulation under Casey between 1992 and 2016, and that decision was quickly overruled when George W. Bush’s nominees joined the Court. (The Court upheld a federal ban on so-called “partial-birth abortion” after striking down a nearly identical state statute less than a decade earlier.)
The Court finally struck down a particularly extreme Texas statute in 2016, one that required abortion clinics to have facilities similar to those in clinics that performed a much wider range of procedure, and also required doctors to have admitting privileges in a nearby hospital — requirements that would have required a majority of the state’s clinics to close. This decision has become effectively a dead letter with Kennedy’s retirement. But in any case, states have many regulatory tools at their disposal to discourage women from getting abortions. These regulations have been distressingly effective at making abortion inaccessible for many women, particularly those in rural areas.
According to McArdle, the US has “one of the world’s most permissive abortion laws.” This point, related to the previous one, uses the somewhat more stringent term limits in most European countries as a “gotcha” against liberals. “France, like many European countries, takes a stricter line on abortion than does the United States,” writes Kevin Williamson, of National Review (and, ever-so-briefly, the Atlantic).
Ross Douthat has similarly argued that the French system, which permits abortion for any reason within 12 weeks of conception, afterwards requiring certification by two doctors that abortion would be threatening to a woman’s life or health, represents a plausible “middle ground” in the American abortion debate.
