Lone Ranger’s Last Stand

Roe v. Wade is the Lone Ranger in the old joke.

Tonto and the Lone Ranger find themselves surrounded by hostile Apaches. “What do we do now, Tonto?” asks the Lone Ranger. Tonto, surveying his fellow Apaches and his pale-faced companion, says, “What do you mean ‘we,’ Kemo Sabe?”

We can be certain that Roe v. Wade’s days are numbered because even its friends are turning against it.

Roe is the 1973 U.S. Supreme Court decision that (with its companion Doe v. Bolton) made abortion legal in the United States at any time, for any reason, from conception until birth. It claimed that the right to privacy guaranteed the right to abortion.

The right to privacy came from the 1965 decision Griswold v. Connecticut and the strangest logic in Supreme Court history. The court’s majority found the right in an “emanation” (a radioactive emission) of a “penumbra” (a partial shadow in an eclipse) of the Bill of Rights.

Pro-lifers have for years complained about the legal stretch that federalized abortion law and led to the annual killing of 1.3 million unborn children. When Roe is overturned, each state will presumably be free to create its own abortion laws.

Journalist Timothy P. Carney (at TimothyPCarney.com, crediting Ed Whelan’s Senate testimony) put together a list of pro-abortion legal experts who criticize Roe v. Wade. Here are excerpts:

Ruth Bader Ginsburg, U.S. Supreme Court Justice: “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

Kermit Roosevelt, pro-abortion professor at the University of Pennsylvania Law School: “[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.

“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 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.

“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.”

Laurence Tribe, Harvard Law School fellow and lawyer for Al Gore in 2000: “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.”

Edward Lazarus, former clerk to former Justice Harry Blackmun, Roe v. Wade’s main author: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”

Richard Cohen, pro-abortion Washington Post columnist: “[T]he very basis of the Roe v. Wade decision — the one that grounds abortion rights in the Constitution — strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.” Roe “is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument. …. 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.”

Jeffrey Rosen, legal affairs editor of pro-abortion political magazine The New Republic: “Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”

Benjamin Wittes, pro-abortion Washington Post columnist: Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”

We have Roe surrounded and its friends have surrendered. Let’s finish it off.