A Liberal Case Against Roe v. Wade

Why Roe Skepticism Doesn't Make One A Judicial Extremist

So I think that a right to have an abortion isn’t just a good idea but a vital component of maintaining a modern, egalitarian and free society. It’s important enough to our way of life and makes so much difference in outcomes that it should be enshrined in our constitution with other fundamental principles like free speech or freedom of religion.

Problem is that it wasn’t. Certainly not explicitly. Since I believe that it’s an appropriate function of the US supreme court to expound new legal theories, rights and remedies (as part of the great tradition of common law as the founders intended) in itself this isn’t a problem. The court certainly could have validly developed a theory of personal autonomy which coherently marked the right to receive medical treatment to terminate a pregnancy as protected in much the same way as it has coherently developed the theory of personal autonomy interests in people’s private sexual liaisons (accepting the consequences even when it reaches results like protecting fundamentalist mormon derived polygamy despite the unusual partisan valence).

Unfortunately, the court simply hasn’t done that. If banning medical treatments that would let someone terminate a pregnancy implicates personal autonomy then banning medical treatments that might let save me from dying of cancer must do so to an even greater degree. Yet the court does not recognize a constitutional right to try medication that hasn’t been approved by the FDA even when the approval was denied merely because the FDA judges the harmful side effects too severe or the evidence for efficacy too weak or not yet fully presented. In other words even when the government merely thinks my fully informed (and not mislead into fakery) judgement about what risks to take or harms to endure for a chance at a cure is unwise or ought not to be encouraged this isn’t seen as infringing on my right to personal autonomy. Even though those who want to ban abortive medical services are similarly expressing a value judgement about the relative merits of the consequences of doing so.

Nor is this some narrow exception justified by the compelling governmental need to incentivize efficacy trials or exclude quackery. Even when the government bans use of Marijuana as medicine the court doesn’t require any showing from the government that it’s not denying citizens the personal autonomy to effectively treat their medical condition as it would if it felt that any true constitutional right were implicated. It might not fall on identity based fault lines but surely being forced to lose one’s sight to glaucoma is rather than take an intoxicating medication, if not on par with having carry a child to term1, still an undeniably substantial infringement on personal autonomy. The court isn’t any more sympathetic when individuals seek to assert a constitutional right to drugs like peyote even when, as in Employment Division v. Smith, the individual is seeking access to peyote as part of a deeply felt belief in the religious principles of the Native American Church.

Intuitively, maybe you feel this is all silly. Surely none of this crap is important the way abortion is. How dare I suggest denying some wacky religious use of peyote is comparable to forcing women to carry a child to term. Indeed, I agree with you. These aren’t anywhere near as important and retaining women’s right to choose. But that’s the point. Constitutional protections for abortion don’t flow from any generally applied/developed theory of a right to personal autonomy or anything else. They flow from a value judgement about the importance (and correctness) of protecting a women’s right to choose. Even on a liberal living constitution theory of jurisprudence that’s not kosher. The supreme court is supposed to articulate general theories/conceptions of constitutional rights not weigh in individually on policy judgements simply because they happen to be really important or bad.

Having said all this I still believe that reliance interests favor respecting stare decisis when it comes to Roe. Personally, I actually believe they should respond by actually taking seriously the idea of a right to personal autonomy that is infringed by government restrictions on what medical treatments or drugs one can access. However, there is surely a strong argument that even someone who has a liberal judicial philosophy should react to the strong policy considerations that animated Roe and vote to reverse this outlying opinion.

Now, I don’t expect most people who read this to agree with this last conclusion. However, if you at least found these worries/arguments cogent, serious and requiring a substantive rebuttal you certainly can’t join the howling masses in suggesting that an unwillingness to uphold Roe v. Wade is indicative of a right wing judicial extremists. If you really believe that the Senate should confirm any academically/judicially qualified candidate without disqualifying extremist views then you can’t simply insist that Kavanaugh must be such an extremist because he happens to hold a non-crazy position that you’re convinced is not only really wrong but also really important.

It’s still perfectly reasonable to think that abortion is important enough that the Senate shouldn’t confirm anyone who will vote to overturn Roe. I hold such a position myself. But let’s not confuse that straightforward disagreement with the claim that somehow the conservatives have violated a norm of judicial non-extremism. Just admit that some principles can be important enough to vote against nominees who don’t support them no matter how reasonable or even mainstream (relative to the political landscape) their views are.


  1. Note that even if it turns out no one actually is faced with that choice, e.g., the commercial drugs now manage equal effect, the point is that the court obviously wouldn’t even require the government to demonstrate such a point to uphold the restriction of Marijuana.