Editing Roe v. Wade (section)

===Responses within the legal profession===
[[Modern liberalism in the United States|Liberal]] and [[feminist]] legal scholars have had various reactions to ''Roe'', not always giving the decision unqualified support. One argument is that Justice Blackmun reached the correct result but went about it the wrong way.<ref name="Balkin 2001">[[Jack Balkin|Balkin, Jack]]. [https://core.ac.uk/download/pdf/72834756.pdf Bush v. "Gore and the Boundary Between Law and Politics"] {{webarchive|url=https://web.archive.org/web/20080227213608/http://www.yalelawjournal.org/pdf/110-8/balkin.pdf |date=February 27, 2008 }}, 110 ''Yale Law Journal'' 1407 (2001): "Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun's opinion seems to have been taken from the Court's [[Cubist]] period."</ref> Another is that the end achieved by ''Roe'' does not justify its means of [[judicial fiat]].<ref name="Cohen 2005">[[Richard Cohen (Washington Post columnist)|Cohen, Richard]]. [https://www.washingtonpost.com/wp-dyn/content/article/2005/10/19/AR2005101901974.html "Support Choice, Not Roe"], ''Washington Post'', (October 19, 2005): "If the best we can say for it is that the end justifies the means, then we have not only lost the argument—but a bit of our soul as well." Retrieved January 23, 2007.</ref>

{{multiple image
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 | footer = In 1997, Justice Blackmun (grave, left) gave his papers to the [[Library of Congress]] under terms concerning when his papers, including notes tracing the development of the ''Roe'' opinion, would be released. To accommodate demand on the day of the final release to the general public five years after his death, the library set up a temporary media center with 18 workstations. The two employees in the foreground are from [[CNN]].<ref>[https://www.loc.gov/loc/lcib/0404/blackmun.html Supreme Court Justice's Papers Opened for Research] by Daun Van Ee, ''Library of Congress Information Bulletin'', Volume 63, Number 4, April 2004</ref>
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[[David Garrow]] said that the decision in ''Roe'' and also ''[[Doe v. Bolton]]'' "owed a great amount of their substance and language" to Justice Blackmun's [[law clerks]], George Frampton and Randall Bezanson. He thought the extent of their contributions were remarkable, and that the clerks exhibited an "unusually assertive and forceful manner" in voicing their views to Justice Blackmun. In his research, it was the earliest significant example he found of this behavior pattern, which grew more consistent later on. In Garrow's evaluation, the clerks' contributions were "historically significant and perhaps decisive" in shaping the two decisions.<ref name=garrow>[https://www.legalaffairs.org/issues/May-June-2005/feature_garrow_mayjun05.msp The Brains Behind Blackmun] {{Webarchive|url=https://web.archive.org/web/20220622210030/https://legalaffairs.org/issues/May-June-2005/feature_garrow_mayjun05.msp |date=June 22, 2022 }} by David J. Garrow, ''Legal Affairs: The Magazine at the intersection of law and life'', May/June 2005</ref>

In response to Garrow, [[Edward Lazarus]] said that Justice Blackmun's later clerks like himself did not need as much direction on reproductive rights since they had Justice Blackmun's prior opinions to draw from. Lazarus thought that on at least some occasions when legal formulations were created for opinions to be published in Justice Blackmun's name, the justice himself was not engaged in originating every significant thought pattern that they employed. Lazarus agreed that Garrow's depiction of how the trimester framework came about was an example of one of these occasions.<ref name=garrow/> He concluded: "The problem of excessive clerk delegation was less serious in Blackmun's chambers than Garrow suggests but is also more commonplace among the justices. The modern Supreme Court has deep problems in its decisional culture and the overuse of law clerks is an aspect of this."<ref name=Lazarus>[https://www.legalaffairs.org/issues/May-June-2005/feature_response_mayjun05.msp Readers Respond: Justice Blackmun] {{Webarchive|url=https://web.archive.org/web/20211219030600/https://www.legalaffairs.org/issues/May-June-2005/feature_response_mayjun05.msp |date=December 19, 2021 }}, letter by Edward Lazarus, ''Legal Affairs: The Magazine at the intersection of law and life'', May/June 2005</ref>

Justice [[John Paul Stevens]], while agreeing with the decision, suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint.<ref>{{cite news|last= Rosen|first=Jeffrey|author-link=Jeffrey Rosen (legal academic)|title=The Dissenter|url=https://www.nytimes.com/2007/09/23/magazine/23stevens-t.html|work=[[The New York Times Magazine]]|date=September 23, 2007 }} Rosen notes that Stevens is "the oldest and arguably most liberal justice".</ref> Before joining the Court, Justice [[Ruth Bader Ginsburg]] criticized the decision for venturing "too far in the change it ordered".<ref>[https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://scholar.google.com/&httpsredir=1&article=2961&context=nclr Some Thoughts on Autonomy and Equality in Relation to ''Roe v. Wade''] by Ruth Ginsburg, ''North Carolina Law Review'' Volume 63, Number 2, Article 4, 1985, page 381, (page 8 of the pdf)</ref> Had the decision been limited in scope to only permit abortion during certain circumstances, "physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed".<ref>[https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://scholar.google.com/&httpsredir=1&article=2961&context=nclr Some Thoughts on Autonomy and Equality in Relation to ''Roe v. Wade''] by Ruth Ginsburg, ''North Carolina Law Review'' Volume 63, Number 2, Article 4, 1985, page 382, (page 9 of the pdf); page 385 (page 12 of the pdf) reads: "The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Retrieved January 23, 2007.</ref> After becoming a Supreme Court justice, Ginsburg faulted the Court's approach for being "about a doctor's freedom to practice his profession as he thinks best{{nbsp}}... It wasn't woman-centered. It was physician-centered."<ref>{{cite news|last=Bullington|first=Jonathan|title=Justice Ginsburg: Roe v. Wade not 'woman-centered'|url=http://www.chicagotribune.com/news/local/breaking/chi-justice-ginsburg-roe-v-wade-not-womancentered-20130511,0,3079568.story|newspaper=Chicago Tribune|date=May 11, 2013}}</ref> Justice Ginsburg thought that ''Roe'' was originally intended to complement Medicaid funding for abortions, but this did not happen.<ref name=bazelon/> About ''[[Harris v. McRae]]'', which upheld restrictions on Medicaid abortion funding, she said:<ref name=bazelon>[https://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html?_r=1&pagewanted=print The Place of Women on the Court] by Emily Bazelon, ''New York Times Magazine'', July 7, 2009</ref>
<blockquote>Yes, the ruling about that surprised me. Frankly I had thought that at the time ''Roe'' was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that ''Roe'' was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn't really want them. But when the court decided ''McRae'', the case came out the other way. And then I realized that my perception of it had been altogether wrong.</blockquote>

[[Watergate]] prosecutor [[Archibald Cox]] thought the "failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child birth and abortion or new advances in providing for the separate existence of a fetus. Neither historian, nor [[Laity|layman]], nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."<ref>Cox, Archibald. ''[https://books.google.com/books?id=ZrYdAAAAMAAJ The Role of the Supreme Court in American Government]'', 113–14 (Oxford U. Press 1976), quoted in the [https://books.google.com/books?id=5TdOKCFEJ7UC&dq=%22failure+to+confront%22&pg=PA916 statement of Hon. Henry Hyde, A U.S. Representative from the State of Illinois], from the ''Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate'', Washington, D.C.: U.S. Government Printing Office, 1982, page 916; [[Stuart Taylor Jr.|Stuart Taylor]] has argued that "''Roe v. Wade'' was sort of conjured up out of very general phrases and was recorded, even by most liberal scholars like Archibald Cox at the time, John Harvey Link—just to name two Harvard scholars—as kind of made-up constitutional law." Stuart Taylor Jr, ''Online News Hour'', ''PBS'' July 13, 2000</ref>

In a highly cited ''[[Yale Law Journal]]'' article published in the months after the decision,{{sfnp|Greenhouse|2005|pp=135–136}} the American legal scholar [[John Hart Ely]] criticized ''Roe'' as a decision that was disconnected from American constitutional law.<ref>Ely, John Hart. "[https://walldorf.typepad.com/politics_economics_and_ot/files/wages_wolf.pdf The Wages of Crying Wolf] {{webarchive|url=https://web.archive.org/web/20070625170521/http://www.timothypcarney.com/wages-wolf.htm |date=2007-06-25 }}", 82 ''Yale Law Journal'' 920 (1973). Retrieved January 23, 2007. Professor Ely "supported the availability of abortion as a matter of policy." See Liptak, Adam. [https://query.nytimes.com/gst/fullpage.html?res=9502E2DF1131F934A15753C1A9659C8B63 "John Hart Ely, a Constitutional Scholar, Is Dead at 64"], ''The New York Times'' (October 27, 2003). Ely is generally regarded as having been a "liberal constitutional scholar." Perry, Michael (1999). {{Google books|ka8ajkxQWxkC|We the People: The Fourteenth Amendment and the Supreme Court}}</ref> 
{{Blockquote
|text=What is frightening about ''Roe'' is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure.{{nbsp}}... The problem with ''Roe'' is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business.{{nbsp}}... [''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.<ref>{{harvp|Ely|1973|pp=935–36, 943, 947}}, quoted in part in {{harvp|Chemerinsky|2019|loc=§ 10.3.3.1, p. 856}}.</ref>
}}

American constitutional law scholar [[Laurence Tribe]] said: "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."<ref>{{cite journal |last=Tribe |first=Laurence |year=1973|title=The Supreme Court, 1972 Term – Foreword: Toward a Model of Roles in the Due Process of Life and Law |journal=[[Harvard Law Review]] |volume=87|issue=1 |pages=1–314 |doi=10.2307/1339866|jstor=1339866 |pmid=11663596 }} Quoted in {{cite journal |last=Morgan |first=Richard Gregory|year=1979 |title=''Roe v. Wade'' and the Lesson of the Pre-''Roe'' Case Law |journal=[[Michigan Law Review]] |volume=77 |issue=7 |pages=1724–48|doi=10.2307/1288040 |jstor=1288040|pmid=10245969|url=https://repository.law.umich.edu/mlr/vol77/iss7/4}}</ref> Centrist-liberal law professors [[Alan Dershowitz]],<ref>[https://books.google.com/books?id=-nCKDwAAQBAJ&pg=PA433 Taking the Stand: My Life in the Law] by Alan Dershowitz, New York: Broadway Books, 2013, page 433, "Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)...{{nbsp}}."</ref> [[Cass Sunstein]],<ref>Sunstein, Cass, quoted in [http://www.nysun.com/article/23046 Roe v. Wade an Issue Ahead of Alito Hearing] by Brian McGuire, ''New York Sun'' (November 15, 2005): "What I think is that it just doesn't have the stable status of ''[[Brown v. Board of Education|Brown]]'' or ''[[Miranda v. Arizona|Miranda]]'' because it's been under internal and external assault pretty much from the beginning{{nbsp}}... As a constitutional matter, I think ''Roe'' was way overreached." Retrieved January 23, 2007. Sunstein is a "liberal constitutional scholar". See  [https://web.archive.org/web/20071223044406/http://findarticles.com/p/articles/mi_qn4155/is_20050711/ai_n14852520 "Former U of C law prof on everyone's short court list"] by Eric Herman, ''Chicago Sun-Times'' (Archived December 23, 2007)</ref> and [[Kermit Roosevelt III]] have also expressed disappointment with ''Roe v. Wade''.<ref name="Roosevelt 2003">Roosevelt, Kermit. "[https://www.washingtonpost.com/archive/opinions/2003/01/22/shaky-basis-for-a-constitutional-right/dd30d42e-188d-42f6-8fb2-b935394e63aa/ Shaky Basis for a Constitutional 'Right']", ''Washington Post'', (January 22, 2003): "[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, ''Roe'' is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.{{nbsp}}... This is not surprising. As constitutional argument, ''Roe'' is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional [[Aether (classical element)|ether]]. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional 'person' entitled to the protection of the 14th Amendment.{{nbsp}}... By declaring an inviolable fundamental right to abortion, ''Roe'' short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values." Retrieved January 23, 2007.</ref>

[[Jeffrey Rosen (legal academic)|Jeffrey Rosen]],<ref>{{cite news|last= Rosen|first=Jeffrey|author-link=Jeffrey Rosen (legal academic)|title=Why We'd Be Better off Without ''Roe'': Worst Choice|archive-url=https://web.archive.org/web/20030309173117/http://www.tnr.com/doc.mhtml?i=20030224&s=rosen022403 |archive-date=March 9, 2003|url=http://www.tnr.com/doc.mhtml?i=20030224&s=rosen022403|magazine=The New Republic|quote=In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized ''Roe'' on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.|date=February 24, 2003 |access-date=January 23, 2007}}</ref><ref>{{cite news|last= Rosen|first=Jeffrey|author-link=Jeffrey Rosen (legal academic)|url= https://www.theatlantic.com/magazine/archive/2006/06/the-day-after-roe/304882/|title=The Day After Roe|work=[[The Atlantic]]|access-date=May 20, 2019|date=June 1, 2006}}</ref> as well as [[Michael Kinsley]],<ref>Kinsley, Michael. "Bad choice", ''The New Republic'' (June 13, 2004): "Against all odds (and, I'm afraid, against all logic), the basic holding of ''Roe v. Wade'' is secure in the Supreme Court.{{nbsp}}... [A] freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami." Quoted in [https://www.washingtonexaminer.com/honest-pro-choicers-admit-roe-v-wade-was-a-horrible-decision Honest pro-choicers admit Roe v. Wade was a horrible decision] by Timothy P. Carney, ''Washington Examiner'', January 22, 2011</ref> echo Ginsburg, arguing that a legislative movement would have been the correct way to build a more durable consensus in support of abortion rights. [[William Saletan]] wrote, "Blackmun's papers vindicate every indictment of ''Roe'': invention, overreach, [[Standard of review#Arbitrary and capricious|arbitrariness]], [[Textualism|textual]] indifference."<ref>Saletan, William. [http://www.legalaffairs.org/issues/May-June-2005/feature_saleton_mayjun05.msp "Unbecoming Justice Blackmun"] {{Webarchive|url=http://arquivo.pt/wayback/20091015062126/http://www.legalaffairs.org/issues/May-June-2005/feature_saleton_mayjun05.msp |date=October 15, 2009 }}, ''Legal Affairs'', May/June 2005. Retrieved January 23, 2007. Saletan is a self-described liberal. See Saletan, William. [http://www.slate.com/id/2170311/ "Rights and Wrongs: Liberals, progressives, and biotechnology"], ''Slate'' (July 13, 2007).</ref> [[Benjamin Wittes]] argued that ''Roe'' "[[disenfranchised]] millions of conservatives on an issue about which they care deeply."<ref>Wittes, Benjamin. "[https://www.theatlantic.com/doc/200501/wittes Letting Go of ''Roe'']", ''The Atlantic Monthly'', Jan/Feb 2005. Retrieved January 23, 2007. Wittes also said, "I generally favor permissive abortion laws." He has elsewhere noted, "In their quieter moments, many liberal scholars recognize that the decision is a mess." See Wittes, Benjamin. [http://www.tnr.com/politics/story.html?id=30f9cb45-53e4-4e16-b447-968c6ea52e2a "A Little Less Conversation"], ''The New Republic'' November 29, 2007</ref> Edward Lazarus, a former Blackmun clerk who "loved ''Roe''{{'}}s author like a grandfather", wrote: "As a matter of constitutional interpretation and judicial method, ''Roe'' borders on the indefensible.{{nbsp}}... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since ''Roe''{{'s}} announcement, no one has produced a convincing defense of ''Roe'' on its own terms."<ref>Lazarus, Edward. "[https://supreme.findlaw.com/legal-commentary/the-lingering-problems-with-roe-v-wade-and-why-the-recent-senate-hearings-on-michael-mcconnells-nomination-only-underlined-them.html The Lingering Problems with ''Roe v. Wade'', and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them]", ''Findlaw's Writ'' (October 3, 2002). Retrieved January 23, 2007.</ref>

[[Richard Epstein]] thought that the majority opinion relied on a book written by [[William Lloyd Prosser]] about [[tort]] law when it stated that it "is said" recovery of [[damages]] was allowed "only if the fetus was viable, or at least quick, when the injuries were sustained".<ref>[https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe'', 410 U.S.] at 161</ref> He compared this to what was in fact written in the book,<ref>''The Law of Torts'' by William Lloyd Prosser, 4th edition, St Paul, Minnesota: West Publishing, 1971, page 337</ref> which was that "when actually faced with the issue for decision, almost all of the jurisdictions have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick."<ref>[https://archive.org/details/supremecourtrevi0000unse_z3m8/page/174/mode/1up?view=theater Substantive Due Process by any other name: The Abortion Cases] by Richard A. Epstein, ''The Supreme Court Review 1973'', University of Chicago Press, 1974, page 174</ref>

[[Matt Bruenig]], lawyer and founder of the [[People's Policy Project]], criticized ''Roe'' as being "weaker than normal" and observed that similarly broad interpretations of the Constitution could be used to argue the opposite outcome, saying "right now we have a constitutional right to an abortion—you could also constitutionally ban abortion. If you wanted to, someone could bring a case, file it in a district court, hit the appeal button twice, and then if you get five judges together, the opinion would be the easiest thing in the world to write. You would say, 'the Fourteenth Amendment protects the right to life, liberty, and property without due process and all that shit. So we're looking at that, and we think that abortion takes a life and so we think that in fact states may not permit abortion'. So you could constitutionally ban it and say that no state or federal government is allowed to legalize abortion".<ref>{{cite podcast |host=[[Matt Bruenig]] |title=The Bruenigs |website=Apple Podcasts |date=25 June 2022 |url=https://podcasts.apple.com/us/podcast/audio-grab-bag-alitos-draft-opinion-on-roe-casey/id1393726435?i=1000567653331 |access-date=26 June 2022}}</ref>

The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the ruling.<ref>{{harvnb|Forsythe|2013|p=496}}</ref> The "viability" criterion was still in effect, although the point of viability changed as medical science found ways to help [[premature babies]] survive.<ref>Stith, Irene. ''[https://www.everycrsreport.com/files/19971117_95-1101SPR_4cea14f2084054f44aafea51ee41bd0a949ba4d1.pdf Abortion Procedures, CRS Report for Congress (PDF)]'' (November 17, 1997). Retrieved December 21, 2021.</ref>