Roe's Knotty Legal Legacy

Richard Epstein

There is little doubt that, of all the Supreme Court decisions of the last 100 years, Roe v. Wade—a decision handed down 41 years ago yesterday—has generated the longest, unresolved controversy. This is not to say that it was the most important decision over this time span. That pride of place probably belongs to Brown v. Board of Education.

There is a critical difference, however, between the two cases: Brown generated a huge amount of opposition in the decade after it came down and even its supporters were deeply uneasy about the legitimacy of a decision that they had passionately defended. That controversy has faded over time, so much so that anyone who hints that it might be wise to revisit that decision today is consigned by all parties to the lowest circle of constitutional hell.

The same is not true of the abortion cases. At the time it came down, Roe was controversial on at least two grounds. The first had to do with the morality and propriety of abortion. The second had to do with the constitutional propriety of the decision, which divided pregnancy, like Gaul, into three parts, each with its own distinctive constitutional regime.

This issue was all the more painful because the dominant liberal political elites of the 1970s shared the conservative view that Lochner v. New York, decided in 1905, had seriously overstepped the bounds of proper constitutional adjudication when it struck down New York’s law restricting certain bakers to working 10 hours per day and 60 hours per week. Justice Holmes in one of his memorable (if misguided) lines thundered: “The Fourteenth Amendment does not enact Mr. Herbert Spencer'sSocial Statics.” If it does not enact Social Statics, then why does it enact the reproductive agenda of Planned Parenthood?

What is clear about these debates is that, unlike the debate over Brown, this one has not lost any of its intensity on either the moral or legal front. In abortion, it is hard to find some middle ground between the two major positions. One treats personhood as beginning at conception, so that abortion becomes a form of homicide that cannot be justified by noting that it is a woman’s choice what should be done with her own body. The other treats abortion as an elective procedure that each woman should decide for herself, without any state interference in the first trimester and perhaps beyond. There are, of course, intermediate positions that hold it permissible to criminalize abortion except in cases where it is needed to save the life of the mother, or perhaps in cases of rape or serious birth defects. For the most part, however, the debate has concentrated on the two extremes, without much attention being paid to the difficult cases in the middle.

In dealing with these polarized choices, the current reading of the body politic reads, according to Gallup, like this: “Forty years after the Supreme Court issued its opinion in Roe v. Wade, significantly more Americans want the landmark abortion decision kept in place rather than overturned, 53% to 29%. Another 18% have no opinion, the highest level of uncertainty Gallup has recorded on this question in trends dating to 1989.” It is worth adding that many of those people who think that abortion should be legal often have serious qualms about its morality. Nevertheless, they come down on the side of non-interference because of the obviously heavy social costs of imposing criminal penalties in abortion cases. We are in an unhappy political equilibrium.

The consensus may be pat, and it should, after 41 years, probably remain, so I should not be understood as calling for any constitutional change on a decision whose constitutional soundness I strongly questioned (and still strongly question today) in an article for the 1973 term of the Supreme Court Review entitled “Substantive Due Process by Any Other Name: The Abortion Cases.” 

While the title—which I did not choose—stressed the institutional overreach of the Supreme Court under substantive due process, my article was written quite differently. It was a moral account of why the Supreme Court should have upheld the criminal statutes against abortion. In my view, Lochner was clearly distinguishable from Roe.

In the former case, the Court struck down the New York maximum hours statute on the ground that it was not (primarily) related to health or safety and thus did not fall within the traditional ambit of the police power. But Roe cannot play out the same way. It was a decision in which the safety of the fertilized egg, the fetus, the future child is at issue. No matter how that interest is characterized, health and safety is involved, so that the police power comes to bear much more heavily in this case (even for a libertarian, so long as that party believes that even a narrow version of the Millian harm principle applies as a principled limitation on individual liberty). Now, these claims can be fought, especially on the status of the fetus, which is why one of the other headings my editor used in that piece, “When is a person?,” is a rhetorical stroke of genius.

If this argument is correct, then the legal intervention is principled. Indeed the harder question is whether the state could abandon the fetus any more than it could repeal the law of murder so as to create a national free-for-fall. That comparison is not quite right either, because the one saving grace of Roe is that the only person who can terminate the pregnancy is the mother. The world would be a very different place if others could initiate an abortion on the grounds that there is no person there to protect, so that what is involved is at most an attack on the mother—a weird position that, fortunately, no one fully believes.

The question today, however, is not just a question of moral and legal theory. It is also a question of whether a long practice on a contentious issue should be overturned by the Court, or whether it becomes law as part of what I have termed the “prescriptive constitution” in my book The Classical Liberal Constitution.

Frankly, I am torn on that issue. I don’t think that the anti-Roe position is illiberal but recognize that others disagree with me. Yet I am uneasy about the political battle that will ensue if Roe goes down, along with the possibilities of massive evasion of a law that most people don’t like. With the equities divided, I think the status quo should stand. Other issues should define the role of the Supreme Court in modern society. My guess is that this is what will happen, for this consensus will grow only stronger as the years roll by.