The norms Roe destroyed won't revive with its death


If this is really the end for Roe v. Wade (1973), it will be fitting that the decision that shattered so many norms has demolished another one on the way out: An opinion reversing the landmark abortion ruling — confirmed to be authentic, though not the court's final word on the subject — was leaked in a breach of custom and legal ethics.
Roe's champions venerate it as "settled law," but the 1973 Supreme Court decision legalizing abortion never settled the debate. It has raged ever since, poisoning the judicial confirmation process as the nation's highest court became its foremost abortion policymaking body. Roe has turned presidential elections, Senate races, and Supreme Court vacancies into something approaching a battle to the death — much as the ruling's most zealous defenders often speak of the relationship between mother and child in the womb.
Yet even many supporters of legal abortion have concluded Roe was a shoddy piece of judicial work. It relied on fraudulent historical claims and bad science that 1992's Planned Parenthood v. Casey unsuccessfully sought to update. The noted legal scholar John Hart Ely memorably said Roe "is not constitutional law and gives almost no sense of an obligation to try to be." Even from a pro-choice perspective, abortion rights might have been more secure if the product of democratic consensus rather than seven justices — all men, by the way — in the 1970s.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
The leaked draft by Justice Samuel Alito makes these points in sending this contentious issue back to the states. But the damage cannot be so easily undone. People who thought it was perfectly legitimate for the Supreme Court to override all 50 state abortion laws for nearly a half century now think it deligitimizes the court to reach the opposite conclusion. Those norms aren't the most important things that Roe destroyed, at least from the pro-life point of view. But we will continue to reap the whirlwind even after Dobbs v. Jackson Women's Health Organization is handed down.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
W. James Antle III is the politics editor of the Washington Examiner, the former editor of The American Conservative, and author of Devouring Freedom: Can Big Government Ever Be Stopped?.
-
5 of the best shows currently playing on Broadway
the week recommends It's a very good season for theater in New York City
-
Hurricane season is here. How will Trump's FEMA respond?
Today's Big Question An internal review says the agency is not ready for big storms
-
Judge scolds DOJ over Newark mayor arrest
speed read Ras Baraka was arrested during a May 9 surprise visit to a migrant detention facility
-
Is Trump trying to take over Congress?
Talking Points Separation of powers at stake in Library of Congress fight
-
Supreme Court weighs court limits amid birthright ban
speed read President Trump's bid to abolish birthright citizenship has sparked questions among federal judges about blocking administration policies
-
Supreme Court allows transgender troop ban
speed read The US Supreme Court will let the Trump administration begin executing its ban on transgender military service members
-
'The results speak for themselves'
Instant Opinion Opinion, comment and editorials of the day
-
Supreme Court takes up Trump birthright appeal
Speed Read The New Jersey Attorney General said a constitutional right like birthright citizenship 'cannot be turned on or off at the whims of a single man'
-
The anger fueling the Bernie Sanders and Alexandria Ocasio-Cortez barnstorming tour
Talking Points The duo is drawing big anti-Trump crowds in red states
-
Why the GOP is nervous about Ken Paxton's Senate run
Today's Big Question A MAGA-establishment battle with John Cornyn will be costly
-
'You shouldn't need a private company to fill out paperwork for you'
Instant Opinion Opinion, comment and editorials of the day