Law professor Robert Byrn condemns the Court for its claim in Roe and Doe that unborn children are not persons, arguing that this claim has no valid basis in nature, law, or history.

The Court made a fundamental error in its claim that unborn human beings are not "persons" under the Fourteenth Amendment. In resolving this question, the Court should have first considered whether unborn children are live human beings "as a matter of fact," then asked whether all live human beings are "persons" under the Fourteenth Amendment, and finally considered, in light of its answers to the previous questions, whether states have a compelling interest in protecting unborn children.

The Court proceeded in exactly the opposite way, says Byrn. It first decided that there was a constitutional right to privacy that superseded the state's interest in protecting life, then argued that the Fourteenth Amendment does not consider unborn children as "persons," and only after all this turned to the central question of whether the unborn are actually live human beings; in the end, it decided that it didn't need to answer the question at all. "In effect, the Court raised a presumption against the constitutional personality of unborn children and then made it irrebuttable by refusing to decide the basic factual issue of prenatal humanbeingness. The refusal to solve the threshold question of fact at the outset is the crucial error in Wade."

Byrn argues in detail that the historical, legal, and scientific evidence all show that the Court's decisions were flawed on nearly every point at issue.

To read the full article, click here (41 Fordham Law Review 807 (1973))

John Hart Ely was one of the twentieth century's most notable and influential constitutional scholars. "The Wages of Crying Wolf" is his well-known article critiquing Roe v. Wade. The decision, he says, was "a very bad decision. . . It is bad because it is bad constitutional law, or rather it is not constitutional law and gives no sense of an obligation to try to be." He argues that the Court had no business venturing into this territory--it should have left the matter to be resolved in legislatures. It offered no good justification or argument to show why it ruled as it did. The Court's attempt to interfere is reminiscent of past decisions that are now universally recognized as bad, says Ely.

Analyzing the Supreme Court's rulings in Roe v. Wade and Doe v. Bolton, law professor Charles Rice strongly objects to the Supreme Court's claim that unborn children are non-persons. The Court was "reckless at best" in ignoring the question of when human life begins. Rice points to other decisions that clearly suggest that all living human beings are persons--and the scientific evidence indisputably establishes that unborn children are live human beings. The Court's ruling suggests that "personhood" is not something natural but a concept purely defined by law. This is a dangerous idea, argues Rice, and its logic is very similar to the Nazis' attempt to characterize Jews as non-persons. It is a misinterpretation of the Constitution as well: the fifth and fourteenth amendments were intended to include all live human beings under the concept of personhood.

Alexander Bickel, one of the most renowned constitutional scholars of the twentieth century, was sharply critical of Roe v. Wade, singling out Roe as a textbook example of judicial overreaching. Bickel argues that the Constitution offers few "definite, comprehensive answers on matters of social or economic policy." These matters must be resolved primarily by political processes and institutions, not by courts and judges. Judges should never impose their own views on society merely because they believe that they know better than political institutions. In Roe v. Wade, the Court tried to settle the abortion issue by devising a "uniform statute" that it imposed on all the states, offering no justification for its imposition. "It simply asserted the result it reached." Bickel finds it "astonishing" that only two justices dissented from Roe, and he agrees with the verdict of the dissenting justices that the Court's decision was an "extravagant exercise of raw judicial power" and was "a legislative rather than judicial action."

Witherspoon, a law professor and civil rights activist, argues that the Supreme Court's abortion decisions were flawed on a number of counts, but the "central criticism" he levels at Roe v. Wade and Doe v. Bolton was their failure to accurately assess the purpose and intentions of the framers of the Thirteenth and Fourteenth Amendments. The Court had ruled, of course, that unborn children were not persons under the Fourteenth Amendment, which meant that they had no constitutional rights to life, liberty, or property. But in rendering this verdict the Court never bothered to consider the framers' actual intentions in this regard, a lapse that Witherspoon views as a "failure to be faithful to the law or to respect the legislature which framed it." If the Court had attempted to uncover the actual purpose of the Thirteenth and Fourteenth Amendments, it would have come to the opposite conclusion from Roe and Doe: the whole purpose of the Amendments was to make the concepts "human being" and "person" one and the same, such that never again could any human being be excluded from the protections extended to all persons by the Constitution.

Archibald Cox was an accomplished lawyer and expert on constitutional law. In The Role of the Supreme Court in American Government he traced the development of the Court's place in the American legal system. The Court has established itself as the "supreme expositor" of the Constitution, says Cox. In doing so it has fulfilled a much-needed role, but has also exceeded the bounds of its legitimate authority on occasion. Cox sees Roe as an instance of this sort of illegitimate judicial activism. Ruling that abortion was a constitutional right, the Court went well beyond the actual text of the Constitution: "[T]he Justices read into the generalities of the Due Process Clause of the Fourteenth Amendment a new 'fundamental right' not remotely suggested by the words. Because they found the right to be 'fundamental', the Justices felt no duty to defer to the value judgments of the people's elected representatives, current as well as past." Roe was not sufficiently rooted in either the Constitution or traditions of the American people. "Neither historian, layman, nor lawyer will be persuaded that all the details prescribed in Roe v. Wade are part either of the natural law or the Constitution," says Cox.

Cox notes that judicial activism of this sort can lead to two major problems: (1) by striking down widely accepted social policy in favor of its own, the Court risks undermining its legitimacy and authority; (2) activism might make people overly reliant on courts to settle questions that they should resolve themselves through legislatures. There is also danger that the court will be seen not as an impartial and neutral umpire, but as a merely political institution influenced by special interests.

In this book legal scholar John Noonan engages in 20 inquiries that explore the nature of the abortion liberty established by what he calls "The Abortion Cases" (Roe v. Wade and Doe v. Bolton)--its boundaries, its jurisprudential and constitutional context, its political constituencies, its legends, its dynamism, its impact on the family, medicine, and the political process. The 20 inquiries lead to several conclusions, including:

1. The liberty established in The Abortion Cases has no foundation in the Constitution. Its establishment by an act of raw judicial power was an imposition of the personal beliefs of seven justices on the citizens of 50 states.

2. The Abortion Cases rest on multiple serious errors of history, medicine, constitutional law, political psychology, and biology.

3. The liberty is destructive of the structure of the family.

4. The liberty is oppressive to the poor.

5. The liberty violates the ethic of Western medicine from Hippocrates to the present.

6. The liberty divides the country. Never before has the nation been split on who shall live and who shall die. The division has been brought about by the abortion liberty and the aggressive actions on its behalf.

7. The liberty encourages the coercion of conscience. The dynamism of the liberty does not allow for neutrality. The person who does not conform must be made to cooperate.

When Noonan examines the all-important question of whether there is in fact a constitutional right to abortion, he imagines a hypothetical Martian who would certainly not be able to find such a right in the Constitution itself and, looking at the intent of the Constitution's framers, would discover overwhelming evidence that the framers had no intention of legalizing abortion.

It would be easy, says Noonan, for the Martian to conclude from all this that there is no constitutional right to abortion. This would be hasty, because the Constitution is reinterpreted in the light of changing circumstances. The "interpreters" of the Constitution include all citizens and all branches of government, but chiefly the courts, and most especially the Supreme Court which is the "final interpreter." Yet the Court can be wrong: it can interpret the Constitution in ways that undermine its original purposes. When this happens the rest of the country must either persuade the Court to change its ruling, or pass a Constitutional amendment that corrects the Court.

In The Brethren Woodward and Armstrong give the reader a glimpse into the "inner workings" of the Court from 1969 to 1976, describing in some detail the personalities, judicial theories, and internal political maneuverings that shaped the decisions of the justices. They construct a fascinating "behind-the-scenes" account of how the Court came to its conclusions during that critical time. They show the surprising extent to which these conclusions arose as a result of deal-brokering, vote-counting, and power plays among the nine justices. They include an extensive discussion of the genesis of Roe v. Wade and Doe v. Bolton.

In a compelling and informative article, Horan and Balch show that the Roe v. Wade decision was based on remarkably poor historical and judicial reasoning, criticizing Roe and Doe on several grounds. First, the opinions rely on a distorted version of history that claimed abortion was common, legal, and generally permitted until the late nineteenth century. This is completely false, argue Horan and Balch. Second, the Court's decision had no basis in the Constitution, as numerous legal scholars attested. Third, the Court's argument that unborn children were not persons was erroneous. Fourth, the Court side-stepped the issue of when human life began, claiming that the question was disputed and that the Court need not resolve the issue. However, science is very clear on the point that human life begins at conception, argue Horan and Balch (this aspect of the question is not disputed at all); therefore legal "personhood" must begin at that point as well.

To read the full article, click here (Abortion and the Constitution: Reversing Roe v. Wade Throug the Courts (1987))

John Connery, an eminent authority on the history of moral teaching on abortion, calls the Court's treatment of the history law and morality one of the "most garbled and error-laden parts" of Roe (123). Contrary to the Court's claim, the question on the beginning of human life has never been decisive regarding the morality of abortion or abortion legislation. The basic question on the morality of abortion in the Judeo-Christian tradition is one the Court never explicitly asks, and this question "is the key to the whole legal tradition in the Western world" (127). At various points Connery refutes specific historical claims made by the Court. He summarizes his findings: "In full view of all the available evidence, one must conclude that the position taken by the Supreme Court-that one cannot legislate against abortion unless and until one can show that the fetus is a human being-has no historical precedent" (133).

To read the full article, click here (Abortion and the Constitution: Reversing Roe v. Wade Throug the Courts (1987))

In its 1992 decision, Planned Parenthood v. Casey, the U.S. Supreme Court reaffirmed the "essential holding" of Roe v. Wade. With thorough research and careful analysis, noted legal counsel Paul Linton examines the arguments the Court puts forward. In the end, Linton concludes that the Court reaffirmed Roe because it "simply could not imagine an America without legalized abortion" (102).

Linton organizes his examination around three basic questions:

• Does the Due Process Clause of the Fourteenth Amendment Confer a Right to Abortion?
• Does the Rule of Stare Decisis Require Reaffirmation of Roe?
• Do Principles of Institutional Integrity Require Reaffirmation of Roe?

Question One: The Court backed away from affirming that Roe was correctly decided as a matter of original interpretation. Unlike Roe, which based a right to abortion on an implied right of privacy, Casey propounds a right to abortion as a liberty interest founded in the Due Process Clause of the Fourteenth Amendment. Casey defends this newly formulated right not as something derived from our history and traditions but from "reasoned judgment." Linton concludes: "The Court's most recent effort to persuade the American people that Roe was anything other than 'an exercise of raw judicial power' is ultimately unconvincing" (34).

Question Two: The rule of stare decisis normally means upholding precedent. Invoking this rule, Casey claims to affirm Roe but, based on its own "reasoned judgment," re-writes Roe as it sees fit. The Court's reaffirmation of Roe "is seriously undermined by its near total abandonment of Roe" (34). Linton compares the differences between Roe and Casey, e.g., privacy v. liberty, history and tradition v. "reasoned judgment," fundamental right v. "not indicated," compelling interest narrowly tailored v. substantial interest reasonably related,  strict scrutiny standard of review v. undue burden standard, trimesters v. "bi-mesters" (viability as the important divide).  Linton concludes that "it is hard to give much credence to its [the Court's] pronouncements on the importance of precedent" (36). In great detail Linton analyzes Casey's understanding of precedent, with special attention to viability, stare decisis criteria, and the undue burden standard.

Question Three: Casey claims that the institutional integrity of the Supreme Court requires reaffirmation of Roe. According to Linton, the Court's arguments for this position "seem to point in an opposite direction" (73) and even at one place "to have been invented for the occasion" (76). If Roe's reading of the Constitution was not "beyond dispute," as Casey concedes, then why must Roe be affirmed? Would overruling Roe be seen as yielding to political pressure any more than affirming Roe? Why would overruling Roe question the legitimacy of the Court? On more than 200 occasions the Court has overturned previous decisions. One more, if appropriate, would not damage the Court's credibility. Why must a Court's decision in an "intensely divisive controversy," exemplified in Roe, be seen in some way as beyond correction? Linton calls the Court's position here "profoundly anti-democratic" (76) in tone.

In a final section, Linton asks whether Roe has had a significant influence in areas of law outside of abortion. He reviews more than 100 Supreme Court actions and more than 2300 decisions by other courts. He concludes that Roe has had limited impact. "Indeed, it would be difficult to identify a single legal doctrine or principle that is dependent upon Roe, other than the right to abortion itself" (101). It cannot be argued that Roe must be affirmed to protect other areas of law.

Appendices: In Roe the Court argued that under English common law and 19th century U.S. state statutes "a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today." In Appendix A: The Tradition of Prohibiting Abortion, Linton demonstrates that "[t]hese conclusions, central to the Court's decisions in Roe, are erroneous" (103). In Appendix B: The Legal Consensus on the Beginning of Life, Linton reviews, state-by-state, court decisions and legislative actions acknowledging in law that life begins at fertilization.

To read the full article, click here (13 St. Louis U. Pub. L. Rev. 15 (1993) Reprinted with permission of the Saint Louis University Public Law Review © 1993 St. Louis University School of Law, St. Louis, Missouri.))

In this article Paulsen examines the Supreme Court's 1992 decision in Planned Parenthood v. Casey, in which the Court reaffirmed Roe v. Wade even as it upheld a Pennsylvania law regulating abortion. In Paulsen's view, this case deserves to be labeled as the "worst constitutional decision of all time," even when compared to cases such as Dred Scott and Roe itself. Not only was Casey unfounded on constitutional grounds (as were Roe and Scott), but was a deliberate attempt on the part of the Supreme Court justices to entrench a decision they knew was wrong. Casey served to make the errors of Roe much more firmly established, and thus tended to perpetuate the terrible effects of the 1973 decision.

In this book Lazarus gives a detailed description of the inner workings of the Supreme Court, using his own experience as Justice Harry Blackmun's law clerk during the 1988-89 term, as well as official documents and interviews with confidential sources. Lazarus includes an extensive discussion of abortion cases in his book, covering central decisions from Roe v. Wade to Planned Parenthood vs. Casey. He was working for the court when it reached its verdict in Webster v. Reproductive Health Services, a case in which several Missouri laws restricting abortion were upheld. Lazarus presents the issue of abortion generally, and the Webster case in particular, as an example of the court's growing divisiveness and politicization.

Two legal experts analyze the failures of the Supreme Court in its attempt to set up a uniform national abortion policy. The article criticizes the Court's policy on four grounds. 1) The Court's venture into the area of abortion was unjustified on constitutional grounds. 2) The Court's abortion policy has failed to take into account the negative sociological effects of abortion, and has thus fostered these negative effects. 3) The Court's abortion policy has been inconsistent and subjective, because the Court is trying to impose a uniform standard on people of widely differing opinions regarding a complex issue. 4) The Court's abortion policy has led to mass confusion in lower courts and the legal system, because of its subjective and contradictory nature. The authors conclude that the abortion issue should be returned to the people, to be resolved by state and local governments.

Helen Alvaré, a law professor at George Mason University, analyzes the Supreme Court's Gonzales v. Carhart (2007) decision upholding a federal ban on partial-birth abortion. Departing from previous abortion rulings, the case considers abortion not only in relation to autonomy and individual rights, but under two key aspects of family law: the existence of a natural bond between biological parents and their children and the vulnerability of children.

In its pre-Gonzales abortion decisions, the Court strains its language to avoid characterizing the relationship of the woman to the unborn child as a parent-child relationship and it sought to avoid acknowledging the vulnerability of the fetus. The Court framed the abortion issue as a contest between the woman and the unborn child, with the woman's "right" or "liberty" to abort opposed to the State's interest in preserving the life of the fetus. The Court characterized the unborn child as "potential life," "a fetus that may become a child," "the contents of the uterus."

In its approach, Gonzales highlighted the bond between mother and child, claiming that this bond is an "ultimate expression" of respect for human life. The Court also emphasized the vulnerability of the child. Its detailed description of the gruesome nature of partial-birth abortion emphasized the humanity and helplessness of the child.

Alvaré argues that Gonzales was a step in the right direction and that abortion law should be harmonized with the rest of family law. " . . [I]f future abortion jurisprudence follows the path down which Gonzales started, laws and policies concerning unborn children could begin to reflect the deep bond that women and men feel toward both their unborn and born children, paving the way for social and economic institutions to follow suit."