Rights and Roe

President Obama marked the 38th anniversary of the Supreme Court decision legalizing abortion in America by restating his commitment to protecting that ‘constitutional right.’

He said the Roe decision affirmed what he called a “fundamental principle that government should not intrude on private family matters.” Trouble is, it actually wasn’t a constitutional right, but one concocted by Justice Harry Blackmun by stretching the right to privacy beyond any historical understanding. And when it was handed down, it intruded on states rights across the country. It has always been called ‘wrongly decided law’, even by liberal, pro-choice scholars and judges.

Look at this lineup. Let’s just look at the first three..

Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).

Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court
“Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
North Carolina Law Review, 1985

Edward Lazarus — Former clerk to Harry Blackmun.
“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.” ….
“What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent – at least, it does not if those sources are fairly described and reasonably faithfully followed.”
“The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, Oct. 3, 2002
“[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”
“Liberals, Don’t Make Her an Icon” Washington Post July 10, 2003.

As Carney says, President Obama’s praise for Roe is unsurprising, given his abortion bona-fides.

But Obama is also a Harvard Law School alumnus, and he used to teach Constitutional law, and so you would think he would see Roe for the embarassing bit of ideologically motivated junk it is.

Archibold Cox did.

“The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution”