Past, future of Roe v. Wade


CHICAGO -- Samuel A. Alito Jr. wrote a memo in 1985 arguing there is no constitutional right to abortion, and abortion-rights supporters are alarmed by that document. They say it proves he's a right-wing extremist with a "long history of hostility to reproductive freedom," in the words of the National Abortion Federation.

Maybe Judge Alito is secretly plotting to make pregnancy mandatory for all fertile females, as the NAF suggests. But for those of us who are inclined to be charitable, there's another possible explanation for why he said the Constitution doesn't protect abortion rights: because it doesn't.

It's true the Supreme Court has ruled it does, but that only proves the Supreme Court has the final say on the matter. The right to abortion is a wholesale invention of the court. There is no reference to it anywhere in the Constitution, and it can't be reasonably extrapolated from the principles enshrined in our national charter.

In the history of American jurisprudence, the 1973 Roe v. Wade decision stands out for its utter detachment from the actual language of the Constitution. That helps to explain why, 33 years later, it has yet to gain broad acceptance from the public at large.

Or, for that matter, from legal scholars - even those who favor abortion rights. It's easier to come up with attorneys and law professors who will defend the Salem witch trials than to find those attesting that Roe was a sound opinion.

Cass R. Sunstein of the University of Chicago Law School, author of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, says Roe "way overreached." Justice Ruth Bader Ginsburg, who founded the Women's Rights Project of the American Civil Liberties Union, once admitted that the decision "was difficult to justify."

Says Edward Lazarus, a former clerk to the late Supreme Court Justice Harry Blackmun, who wrote the opinion in Roe: "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."

For nearly two centuries, the courts had no inkling that abortion was protected by the framers. When the Supreme Court finally discovered the oversight, it didn't get there by applying clear principles or solid precedents, as it usually does in expanding protections. Instead, it took the right of privacy, which is implicitly upheld in various provisions of the Bill of Rights, and stretched it beyond recognition.

The result was like building a skyscraper on a foundation designed for a log cabin. Roe was shaky on Day 1 and has been shaky ever since. All Judge Alito did in 1985 was point out that the moon is not, in fact, made of green cheese.

The court, of course, sometimes finds new rights without an unequivocal constitutional basis - as when it outlawed segregated public schools and when it adopted the "one man, one vote" rule requiring legislative districts to be equal in population. But those decisions soon gained universal acceptance because they reflected certain fundamental values of the Constitution. The right to abortion, however, has still not overcome the powerful doubts it engendered from the start.

So seeing Roe as mistaken is not a radical view. The radical view comes from the other side. When the Constitution says nothing about an issue, the obvious answer is to leave the matter to legislative bodies. When the Constitution is silent, the people get the final say.

Abortion opponents are willing to accept that outcome - even though it would mean abortion would remain widely available. They don't ask the Supreme Court to decree that every fetus must be protected from the moment of conception. They don't insist that the issue be pre-empted by the judiciary. It's abortion-rights supporters who insist that the Constitution forbids anything except their preference, ever.

At this point, though, even a grossly flawed decision may be too established for the justices to abandon. To say Roe was wrong in 1985 is very different from saying today that the court should upend a landmark decision that it has repeatedly reaffirmed.

As a conservative practitioner of a profession that stresses respect for history, continuity and predictability, Judge Alito may ultimately be willing to leave Roe in place. Just don't expect him to pretend it was right all along.

Steve Chapman is a columnist for the Chicago Tribune. His column appears Mondays and Wednesdays in The Sun. His e-mail is

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