Roe and the Culture War Morass

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

Related Post Roulette

12 Responses

  1. Cascadian says:

    Great post. Thanks.Report

  2. matoko_chan says:


    I’ll swallow this mess of pottage if you can tell me how teh “terribly flawed” Roe v Wade is substantially different in mechanism or form from Brown v Board or Loving v Virginia.
    To me, they are all three isomorphic.
    Judgements rendered to protect the rights of individual citizens against the tyranny of the mob.
    From a pragmatic viewpoint, it is inconcievable that the state could subsume the autonomy of a citizens body.
    Restated, citizens simply cannot be forced to be wombs for the State against their will.
    Step away from teh crackpipe boiz.
    Roe v Wade is here to stay.Report

  3. Dave Hunter says:

    So, you’re in support of results-oriented judicial decisions.Report

  4. Matoko – have you ever actually read Roe? Roe does not provide nearly the absolute rights you seem to credit it with, and Casey, which updated Roe, provides less. Justice Blackmun himself acknowledged that the decision to use the trimesters as dividing lines between when a fetus is a “person” and “not a person” and between when a state could make a regulation for the health of the mother and no regulations at all was completely arbitrary (and yes, he used the word arbitrary). Moreover, Roe’s application of Griswold’s right to privacy is illogical.

    Roe and its progeny, unlike Brown or Loving, provide very few clear rules – or even paths to creating clear rules – for what is and is not acceptable regulation. This fact ensures that cases will continue coming to the Court for decades, with very little ever accomplished. It also ensures that abortion will remain a litmus test issue for both parties for some time to come, and in a way that needlessly politicizes the judiciary.

    The fact is that Roe is a poorly written decision, even if I might agree with the result as a matter of policy. Had Roe avoided getting into the type of balancing test usually reserved for legislatures it would not have become such a focal point for unending controversy and litigation.

    The Court in Roe had three choices: create an absolute right to an abortion up to the time of birth, leave the issue entirely up to the states as was historically the case, or, unique in the history of American jurisprudence, fashion an arbitrary dividing line somewhere in between. Had it created an absolute right to an abortion up to the time of birth, it would have been on much firmer ground. Yes, it would have created more anger, but that anger would have eventually subsided as there would not have been any basis for future abortion cases to return to the Court. Same thing if they had just left things to the states.

    But that’s not what they did. If you still think Roe is unassailable legal reasoning, I would strongly recommend you read the law review article I linked to above, which was written by a respected scholar who was pro-choice. There are many other criticisms of the decision that are similar in nature, all from scholars and commentators who agreed with the decision as a matter of policy.Report

  5. Dave Hunter:
    Are you referring to me with that? Because I’m not sure where I implied that I’m in favor of results-oriented decisions. (If you’re referring to my remark about Lochner, I’d just note that in my opinion Lochner was correctly decided as a matter of law and that the cases that semi-overturned Lochner were the results-oriented cases…but that’s completely OT).Report

  6. Dave says:

    Matoko, as a matter of principle, do you support the decision in Lochner?

    Mark, as a quick point, I think there was an article written by David Bernstein commemorating the 100th anniversary of Lochner and his argument was that Lochner did not take center stage as an example of “judicial activism” (an awful an intellectually bankrupt term if there ever was one) until AFTER Roe.

    If I remember Howard Gillman’s work in the The Constitution Beseiged (one of the best works on pre-1937 14th Amendment jurisprudence despite excluding any discussion of Meyer and Pierce), Lochner was basically overturned by 1915 or so. By that time, the last major hurdle was minimum wage laws.

    Lochner was not the Progressive rallying cry that Adkins was or even Hammer v Dagenhart with respect to child labor laws.Report

  7. Dave: As much as I respect David Bernstein, if he made that argument, that argument would appear to be wrong, as the Ely law review article, written very shortly after Roe, discusses in a pretty fair amount of detail the way in which unpopular pre-Roe, post-New Deal decisions were dismissed as being “Lochner-ing.”Report

  8. Dave says:


    I know of the Ely law article but haven’t had the chance to read it. It seems like I need to go back and check on a few things.Report

  9. Hey – it’s a difficult issue, and the Ely article is usually not remembered for its discussion of the hyperbolic use of “Lochner-ing.” I only picked up on it when I re-read it; had I not done so, I wouldn’t have thought to include that point in this post.Report

  10. Dave Hunter says:

    Mark Thompson;

    Sorry for not being more clear. Yes, it seems to me like you’re writing in favor of results-oriented judicial decisions, due to sentences like this:

    ‘So how do we get abortion removed as a focal point of the Culture Wars? Here I tend to think that Damon Linker is correct: overturn, or at least significantly narrow, Roe and its progeny including Casey”

    The subject of how various reworkings the results of judicial decisions would satisfy current prejudices is, I think, a gross topic for conversation.

    However, I agree with you that the reasoning in Roe fails because it doesn’t directly provide an absolute right to an abortion. In my uneducated view, the correct decision would have been to provide states with an alternative between providing absolute abortion rights, or an absolute right to life for the fetus beginning at conception. Similar to the choice provided by the California Supreme Court in “In re Marriage Cases.”

    However, I don’t want this arbitrariness enshrined in law by state legislatures any more than by the Supreme Court. I believe that these arbitrary lines are shaped by prejudice and violate the spirit of the Constitution.Report