Re-reading Roe v. Wade

Table of ContentsI. Introduction 1025IL The Opinion in Roe v. Wade 1026A. Weaknesses 10261. Substantive Due Process 10272. History 10303. The Treatment of the Unborn in Other Areas of the Law 10304. Personhood 10315. The Origins and Value of Human Life 1031B. De-emphasis on Women's Rights 1032C. Eugenics 1033D. Caution Is Surprising in Majority Opinion 1036E. Dissents Are Weak 1037III. Lessons from a Re-reading of Roe v. Wade 1038IV. Conclusion 1046I IntroductionIn January 2013, Linda Greenhouse published a comment2 in the New York Times marking the 40th anniversary of Roe v. Wade.2, In the course of the comment, Greenhouse made the point that almost no one ever reads the Court's decision in Roe v. Wade 4 I think there is a lot of truth to that observation. Roe has become a symbol-it was a great victory for women's rights, it was an important part of a cultural transformation, it is perhaps the leading example of judicial excess, it is a manifestation of the culture of death. But I think it is true that people do not read the actual decision very often anymore.After reading Greenhouse's comment, I did re-read Roe v. Wade carefully. That re-reading of Roe v. Wade was a valuable experience. Scholars, and not just pro-life scholars, know that the opinion is deeply flawed.5 Re-reading the opinion, from a perspective of forty years, makes that even more apparent. Yet, I came away from that re-reading with a renewed confidence that the Court's decision in Roe v. Wade will ultimately be overturned. In this Article, I will explain my reaction to this re-reading of Roe v. Wade.II. The Opinion in Roe v. WadeA. WeaknessesI will begin with a few observations about the opinion. Most of the defects in Roe v. Wade were apparent from the very beginning and were explored in critical articles by John Hart Ely,6 Richard A. Epstein,7 and many others8 in the immediate aftermath of the decision. Some of these well-known errors are still notable on a fresh read.First, it is still striking how poor the opinion is, on so many levels. I will briefly discuss some of the most obvious examples.1. Substantive Due ProcessThe Court's treatment of substantive due process is startlingly shoddy. The Due Process Clause of the Fourteenth Amendment provides that "[n]o state shall.. . deprive any person of life, liberty, or property, without due process of law."9 Although this clause sounds "procedural," the Court has long used the doctrine of substantive due process to "hold[| unconstitutional state statutes that violate a 'liberty' interest the Court believes is protected by the clause, regardless of the manner in which the deprivation occurs."10 This doctrine, "which affords constitutional protection to individual rights claims without a clear textual warrant,"11 has long been controversial.12The Court had rejected all substantive review under the Due Process Clause as recently as 1963. In Ferguson v. Skrupa,13 eight Justices of the Supreme Court rejected any substantive review of legislation under the Due Process Clause.14 In Ferguson, Justice Black stated:The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases-that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely-has long since been discarded. …