Talking Points

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.

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.