How the Court Made Political Compromise Impossible

Randy Beck has just posted a new piece entitled Fueling Controversy on SSRN. He responds to a recent Yale Law Journal article by Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, in which they question the received wisdom that the Supreme Court’s decision in Roe v. Wade generated a political backlash, inflaming conflict over abortion and damaging the political process. While Professor Beck acknowledges the pre-Roe political conflict over abortion, he points to the multiple drafts of the Roe opinion circulated by Justice Blackmun during consideration of the case. Each draft became more and more expansive, with the Court ultimately adopting an interpretation of the constitution that prohibited protection of the unborn child any time prior to viability. Beck argues that the viability rule was a radical expansion of the availability of abortion, “restricting the range of permissible legislative action” and “disabl[ing] legislative bodies from negotiating political compromises like those worked out in other countries.” While his conclusions may not be new, Beck’s careful review of the opinion drafting process in Roe provides substantial evidence for the argument that the Court improperly and unnecessarily constitutionalized a question that was the subject of active deliberation by the people through their elected representatives.

Teresa Collett

Teresa Stanton Collett is a professor at the University of St. Thomas School of Law in Minneapolis, Minnesota, where she teaches bioethics, property law, and constitutional law. A nationally prominent speaker and scholar, she is active in attempts to rebuild the Culture of Life and protect the institutions of marriage and family. She often represents groups of state legislators, the Catholic Medical Association, and the Christian Medical and Dental Association in appellate case related to medical-legal matters. She represented the governors of Minnesota and North Dakota before the U.S. Supreme Court as amici curiae regarding the effectiveness of those states’ parental involvement laws. She has served as special attorney general for Oklahoma and Kansas related to legislation designed to protect the well-being of minors and unborn children. She is an elected member of the American Law Institute and has testified before committees of the U.S. House of Representatives and U.S. Senate Committee on the Judiciary, Subcommittees on the Constitution, as well as numerous legislative committees in the states.