The recently leaked opinion of the Supreme Court overruling Roe v. Wade (1973) has created a firestorm. For those who like the Roe rule, it is the latest indication that Republican judges do not value women’s opinions and proof that the Supreme Court is a political body and not a judicial body. For those who don’t like the Roe rule, it is a blessing 50 years in the making.

Almost all women I know like the Roe rule and think men should butt out. I have one woman friend who is no fan of abortion but, as a high school teacher, saw too many “babies having babies” and those babies were pretty much slated to repeat their mother’s cycle or worse. For her, abortion stopped the bleeding.

This blog is not about the Roe rule. It appears that a majority agree with some form of this rule.  Rather, this blog is about what happens when the wrong group creates the rule and the unintended, but nevertheless, bad effects when that occurs. 

The politics of abortion are, to say the least, complicated. Abortion has become a litmus test for advancement to the Supreme Court where Republican nominees routinely answer questions from Democratic Senators that Roe v. Wade is settled law. No one would dare to say that Roe is a bad decision even though it clearly is. The late Justice Ruth Bader Ginsburg, a defender of Roe, was clearly correct when she said that it would’ve been better if the state legislatures had enacted abortion protection rather than have the Supreme Court make the decision.

Why a bad decision? The Roe opinion was written by Justice Harry Blackmun, a Nixon appointee and a former General Counsel to the Mayo Clinic. He decided that the Constitution required a trimester analysis of abortion. Abortion on demand was fine in the first trimester; in the second trimester it would be up to the doctor and the woman; in the third trimester it would be discouraged unless the life of the mother was in peril. One doesn’t have to be a lawyer to understand that the Constitution didn’t dictate such an analysis.

The scholarly analysis of Roe was blistering. The American legal scholar John Hart Ely wrote in a highly cited article in the Yale Law Review the following: “[Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

American constitutional scholar Laurence Tribe of Harvard had similar thoughts. “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.” Liberal law professors Alan Dershowitz, Cass Sunstein and Kermit Roosevelt agreed.

Edward Lazarus, a former Blackmun clerk, who loved Blackmun like a “grandfather” wrote: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible…and, in almost 30 years since Roe’s announcement, no one has ever produced a convincing defense of Roe on its own terms.”

In layman’s terms, the constitutional basis for Roe was as substantial as, say, cotton candy.  If Roe was legal dross, it would soon become a driver of political realignment. There never was another Supreme Court decision which occasioned an annual protest march numbering recently a half million people. Single issue anti-abortion Democrats became Republicans and the Democratic Party became the abortion party and the Republican Party became the anti-abortion party.

Joe Biden entered the Senate the same year that Roe was decided. He was decidedly anti-abortion and voted repeatedly on the anti-abortion side including voting for a constitutional amendment to overrule Roe. However, he would never have been the Democratic nominee for President if he had maintained that stance and so he changed. His position became that, while he was opposed to abortion, he did not think it right to impose his personal views on his fellow citizens. He was not alone.

So what to make of all of this?

First, many will say that they don’t care whether Roe was a good decision or not because they are pleased with the result. The real problem is that a substantive law dictated by nine unelected judges can also be undone by nine future unelected judges. If, however, the same law is made by a legislature, it is extremely unlikely that it will be repealed.

Second, it would have been a far better result if the decision had been made by a legislative body rather than an unelected court. Suppose California, New York, Illinois and Maryland had enacted laws protecting abortion. Those objecting to those laws would have a remedy: vote the rascals out. There was no such remedy with respect to the Supreme Court whose nine members have a lifetime appointment.

Third, some will say that is not a good solution because there would be no single federal rule. Welcome to the United States. For example, I am an opponent of the death penalty. I think that the Supreme Court, if so disposed, could have figured out a way to declare the death penalty unconstitutional as violating the “cruel and unusual” punishment provision of the Eighth Amendment. Indeed, unlike Roe, there was a specific provision of the Constitution on which the Court could rely.

One year before Roe, the Supreme Court decided the case of Furman v. Georgia and rejected the claim that the death penalty was “cruel and unusual” (2 Justices arguing for that result) but instead determined that it was being applied in an inappropriate manner. So what happened? Legislatures in the various states “corrected” their death penalty statutes but, a number of years later, efforts began to repeal the death penalty.

The net result today is this: 22 states and the District of Columbia have repealed the death penalty and three others have imposed a moratorium (a total of 26). The remainder (25) have the death penalty. This is the way that the Constitution intended for things to work. In the words of Justice Brandeis written in 1932, the states are described as “laboratories for democracy” and their decisions can pave the way for a national policy. It certainly appears that could be the case with the death penalty as DNA proves that mistakes repeatedly occur.

Fourth, the new decision – if finalized ‒ may not have a profound effect. The reason is that well over half of current abortions are effected by use of the abortion pill. That pill has been approved by the Federal Food and Drug Administration and, in this case, the FDA has the whip hand and the Internet and existing networks of helpers will provide a way for someone to get the pill by mail and remain anonymous.

Finally, I think that Roe was a seriously wrong decision and has had profound negative impacts on American life. It has gone a long way to making our courts “political” bodies instead of judicial bodies, but, even more importantly, it was the waystation leading to today’s toxic tribal politics. However, I am not sure that a reversal is in the best interest of the country.

So today’s Supreme Court, in getting it “right,” may actually undermine the country’s confidence in fair and impartial justice not only with respect to abortion but with respect to all other divisive issues. As much as I would like a shot across the bow of the abortion industry (yes, an industry that, like all industries, has annual national conferences with vendor booths and take home trinkets like mouse pads), it is not worth it. We need peace in this country now not more rancor and bitterness.

Sometimes, the best thing to do is accept the past and move on. As Bret Stephens wrote in his New York Times column a few days ago: “The word ‘conservative’ encompasses many ideas and habits, none more important than prudence. Justices: be prudent.”