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?.
-
6 breathtaking homes in capital cities
Feature Featuring a glass conservatory in Atlanta and a loft library in Boston
By The Week US Published
-
Spring's best new cookbooks, from pizza to pastries
The Week Recommends Pizza, an array of brownies and Cantonese-American mash-ups are on the menu
By Scott Hocker, The Week US Published
-
The violent turn 'pedophile hunters' have taken in the US
In the Spotlight These influencers have taken catching predators to another level
By Theara Coleman, The Week US Published
-
Supreme Court upholds 'ghost gun' restrictions
Speed Read Ghost guns can be regulated like other firearms
By Rafi Schwartz, The Week US Published
-
MAGA's push to impeach federal judges
In the Spotlight Trump launches a 'stunning assault' on judicial branch
By Joel Mathis, The Week US Published
-
SCOTUS: A glimmer of independence?
Feature The Supreme Court rejects Trump’s request to freeze nearly $2 billion in foreign aid payments
By The Week US Published
-
Why is MAGA turning on Amy Coney Barrett?
Today's Big Question She may be the swing vote on Trump cases
By Joel Mathis, The Week US Published
-
Supreme Court rules against Trump on aid freeze
Speed Read The court rejected the president's request to freeze nearly $2 billion in payments for foreign humanitarian work
By Rafi Schwartz, The Week US Published
-
Are we really getting a government shutdown this time?
Talking Points Democrats rebel against budget cuts by Trump, Musk
By Joel Mathis, The Week US Published
-
Will Trump lead to more or fewer nuclear weapons in the world?
Talking Points He wants denuclearization. But critics worry about proliferation.
By Joel Mathis, The Week US Published
-
Why Trump and Musk are shutting down the CFPB
Talking Points And what it means for American consumers
By Joel Mathis, The Week US Published