The Radical Wrongness of Roe

In Roe v. Wade, the Supreme Court created a constitutional right of some human beings to kill other human beings. Specifically, the Court held that the Constitution of the United States creates a substantive individual liberty to procure or perform an abortion of a human life—that is, to terminate a woman’s pregnancy by killing the living human embryo or fetus gestating in her womb. The Court located this right to kill the human fetus, implausibly, in the Fourteenth Amendment’s guarantee that persons not be deprived of “life, liberty, or property, without due process of law.”

It is important to be clear-eyed about one fact: Abortion kills a living human being. There is no doubt about that; it is a simple reality of human biology. Abortion kills a living being, and that living being is a human living being—an organism with a biological identity, and life, separate from that of his or her mother. The act of abortion ends a distinct, unique human life.

To be sure, the human embryo or fetus in utero is dependent on the mother’s body for survival and sustenance until about twenty-four weeks into pregnancy. That is a fact of biological reality, too. But the unborn child is not part of the mother’s body. He or she—the unborn child is not an “it,” but an embryonic boy or girl, with an identifiable sex—is an independent life, living within, and dependent on, the mother’s body. Nor does the fact of bodily dependence alter the facts that the fetus is a separate human life and that abortion ends that separate life. It merely means that the human being killed by abortion is killed at an early stage in its life cycle. (I am the same biological organism I was as a zygote, an embryo, a fetus, a newborn, an infant, a toddler, a teenager, and a younger man. If you had terminated my life at any of those stages, you would have been killing me.)

Roe created a license to kill. And kill we have: Since Roe fashioned a constitutional right to abortion in 1973, there have been approximately sixty-­two million abortions in America, a death toll that dwarfs the Nazi Holocaust and exceeds the total loss of American lives in all of our wars ­combined—by a factor of about forty.

Roe is the most extreme and outrageous decision in the Supreme Court’s history. Chief Justice Roger Taney’s majority opinion in Dred Scott v. Sandford (1857) went out of its way to make as many pro-slavery rulings as possible: It purported to deny African Americans any legal rights or human moral worth; it created a substantive-due-process constitutional right to race slavery in (formerly) free federal territories; and it wrapped its holding in the most racist rhetoric imaginable. But Roe is fully as bad as Dred Scott in its legal “reasoning,” for which Dred Scott’s substantive-due-process gibberish was the leading precedent. And Roe is worse in its consequences. A right to kill is even worse than a right to enslave, as a fire is worse than a frying pan.

Racial segregation, the Japanese internment, sterilization of the disabled, blatant and explicit discrimination against women in professional opportunities—these are all bad things, wrongly embraced at points in the Supreme Court’s supremely checkered past. I would be the last to deny the outrageousness of those decisions. But none approaches the enormity of Roe. There is simply nothing like it in recent times. (Say what you will about Obergefell v. Hodges; a constitutional right to same-sex marriage does not kill anyone.) The only thing worse than Roe was its knowing and deliberate reaffirmation in Planned Parenthood v. Casey (1992), on the false and transparent pretext that “stare decisis” requires the Court (sometimes) to adhere to precedents radically at odds with the Constitution. If that were true, all of the above—segregation, discrimination, internment, involuntary sterilization—would still be the law of the land.

Roe is radically wrong. It is radically wrong in its constitutional interpretation, an utterly lawless act of judicial invention. It is an extremist decision in terms of the extent of the abortion-right it so lawlessly fashioned. And it is extreme and demoralizing in its human ­consequences.

Begin with what Roe held. On the way to its recognition of a constitutional right to kill, there were three key rulings: first, that the unborn child had no legal rights or moral status whatsoever; second, that the Constitution affirmatively bestowed upon pregnant women and abortionists a presumptive legal entitlement to abort the unborn; and third, that this presumed right prevailed over essentially any other competing consideration and thus produced a nearly plenary right to abortion throughout all nine months of pregnancy, up to and including the point of birth. Consider these three rulings one at a time.

First, Roe holds that the human fetus has no constitutional legal status as a person and thus no “rights” that anyone else need respect. In this way (among others) Roe eerily parallels Dred Scott, which held that black persons had no rights that anyone need respect and could therefore justly be enslaved for their own benefit. Roe expresses uncertainty as to when human life begins, but then—more than a little inconsistently and incoherently—flatly denies that the unborn count, legally, as “persons in the whole sense.” (Whatever that means: Is there such a thing as a “person in a partial sense”?)

The exact opposite conclusion is far more plausible, if still contestable: The unborn count as legal persons. Sir William Blackstone’s Commentaries on the Laws of England—recognized as the authoritative legal text in eighteenth-century America, establishing commonly accepted baseline understandings of legal rights and powers—treated unborn children as legally entitled to the rights of persons, including the right to protection of the law from private violence, as soon as their separate existence as distinct, living human beings could be discerned. (For Blackstone’s day, that point was “quickening”—­detectable fetal motion. Today’s technology for discerning pregnancy is more advanced; distinct fetal life can be discerned quite early.)

There is evidence that the framing generation carried Blackstone’s conception of legal personhood forward into American law. The debates surrounding the proposal and adoption of the Fourteenth Amendment in 1868 do not discuss the point, however. Nonetheless, as John Finnis has shown (“­Abortion is Unconstitutional,” April 2021), there is a good argument that failure of the state to protect from violence the lives of distinct, living human beings, known to be alive and gestating in their mother’s wombs, is an unconstitutional denial of the amendment’s command of the “equal protection of the laws.” Roe conceded that if the proposition of legal personhood could be established, it would completely defeat any claimed right to abortion. There can be no constitutional right of one person to kill another.

If there is some legal ambiguity surrounding the question of legal personhood, Roe’s second holding is unequivocally and unam­biguously wrong: that the Fourteenth Amendment’s guarantee of “due process of law” before the state ­deprives someone of life, liberty, or property—the same language claimed by Dred Scott to support a federal constitutional right to slave ownership—­embraces a right to “privacy” that includes a right to abortion. Put to one side the logical incoherence and question-begging nature of such a “privacy” formulation, which assumes that there is no third party involved in an abortion—just the woman and the abortionist. This second holding of Roe has no basis in the text, structure, or history of the Constitution. No rule supplied by the text of the document itself, discernible from its structure or internal logic, or fairly attributable to evidence of its historical meaning, purposes, or original understanding remotely supports the Court’s invention of a right to abortion. Indeed, the idea that those who proposed and adopted the Fourteenth Amendment in 1868—a time when abortion restrictions and prohibitions were prevalent—smuggled in, unbeknownst to anyone, a constitutional right to abortion, is ludicrous. Roe, in its central holding of a right to abortion, is simply a lawless decision.

Third and finally, Roe held that this right to abortion prevailed over essentially any and all countervailing considerations. It is important to understand just how extreme Roe is in this regard. Under Roe—and under Planned Parenthood v. ­Casey, which carried Roe’s result forward with minor ­revisions—the right to abortion may be exercised for essentially any reason, including social con­venience, economic concerns, sex-selection, or even spite. And the right is super-protected against all other interests, at all stages of pregnancy, up to and including the point of birth.

Prior to the point of fetal “viability”—that is, when the child can survive outside of his or her mother’s womb—the right to abortion is ­explicitly plenary. States can regulate abortion clinics in certain respects, impose informed consent requirements, and require brief waiting periods. But they cannot forbid any abortion from actually occurring. After viability, states in theory can restrict abortions. But in practice they cannot, because abortion still must be allowed for any “health” reason—with health being defined, strangely, as including any “emotional, psychological, familial,” or “age” consideration agreed upon by the woman and abortionist as a sufficient reason for abortion. (Roe’s companion case, Doe v. Bolton, set forth these “health” criteria, and Roe incorporated them by reference.) This loophole is big enough to drive a truck through. It includes practically any reason for abortion that one could think of, including eugenic reasons of sex-selection or disability-extermination (“familial” and “emotional” health).

The result is abortion on demand, throughout pregnancy. Roe is thus an extremist decision in its substance, as well as a legally indefensible one. The abortion regime Roe and Casey created is one of the most shockingly unrestricted ones in the world. And it exists in the United States on the basis of a judicial edict having no plausible basis in the Constitution the Court purported to interpret in Roe and Casey, but instead betrayed.

One can get lost in the weeds of Roe’s legal and policy radicalism and forget the most important point. That point is not that the decision is legally indefensible, outrageous, doctrinally offensive, and a betrayal by the Court of its constitutional duty—though all this is true. And it is not that the decision legislates a truly extreme pro-abortion legal regime—though that is true, too. The most important point is that this lawless, extremist decision has truly monstrous moral consequences: the creation of a constitutional right to kill, and the massacre that has ensued.

Extremism has consequences. The wages of Roe’s extraordinary infidelity to the Constitution is death on a massive scale.

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court has an opportunity to ­repudiate Roe. The Mississippi law at issue in Dobbs poses a square conflict with the abortion regime of Roe and Casey. There can be no middle ground here—no compromise between right and wrong, no trimming on the basis of politics, no pretext of hiding behind “precedent,” no perpetuation of constitutional error and evil in any form to any degree. Roe v. Wade is one of the worst constitutional decisions of all time, if not the worst—an atrocity almost beyond comprehension. To acquiesce in Roe is to acquiesce in an American holocaust. To deny Roe’s death toll is to engage in a form of holocaust denial. It is time for Roe to be decisively and ­definitively overruled.

Michael Stokes Paulsen is Distinguished University Chair and professor of law at the University of St. Thomas.

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