Reflections on Roe v. Wade and the March for Life

Even though the New York Times and other media outlets routinely ignore the March for Life, the annual March on the anniversary of Roe v. Wade is one of the most significant phenomena in recent American history. In its 1973 decision in Roe v. Wade, the United States Supreme Court thought it settled the abortion controversy. The New York Times thought so too. Yet, over 40 years later, hundreds of thousands of selfless Americans show up in Washington, D.C. in the middle of winter to protest the Court’s decision in Roe v. Wade and to support the culture of life.

In Roe v. Wade and Doe v. Bolton, the Supreme Court invalidated the abortion laws of every state in the Union and effectively required abortion on demand during all nine months of pregnancy. In later decisions (e.g., Planned Parenthood v. Casey in 1992), the Court gave the states more freedom to regulate abortions. But despite what some say, the Casey decision was not a moderate decision. States still have no power to prohibit abortion at any time during pregnancy.

The legal defects in Roe v. Wade were apparent from the very beginning. John Hart Ely, a supporter of abortion rights, noted that 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.”  The Court simply invented a constitutional right to abortion. Moreover, the Court ignored the reality that every abortion takes the life of an innocent human being. The Court, in a false gesture of humility, said that it didn’t need to decide the difficult question of when life begins. But the Court did decide this question when it concluded that unborn children have no rights that the state is bound to respect.

Everyone understands that Roe is not a plausible reading of the Constitution. The decision is, as Michael Paulsen has noted, a running joke in constitutional law circles. Yet, the Court has continually reaffirmed Roe, in large part it seems because some of the Justices think it would undermine the Court’s authority to admit its mistake.

The errors in the Court’s “reasoning” in Roe and in Casey’s ruling to stand by Roe lest people lose confidence in the Court have been well documented for many years. (I summarized these errors in an article I wrote on the 40th anniversary of Roe v. Wade.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2433630 )

I think that eventually the Court will overrule Roe v. Wade. This development will undoubtedly be due in significant part to the efforts of those who have participated in the March for Life for all of these years.

In our system, “We the People” have the final word on the great questions of life and death. Judges can’t really “settle” these issues. This sometimes takes decades but eventually the will of the people will prevail.

We can, I think, see the tide turning. The Court’s abortion decisions have not been accepted. There is constant resistance to Roe among judges, legislators, academics, and in the broader culture. Roe is in many respects an outlier. For example, unborn children have increasingly been accorded protections in other areas of the law. In a recent opinion holding that Alabama’s chemical endangerment statute protected the unborn, one of the Justices on the Alabama Supreme Court commented: “The decision of this Court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law. Today, the only major area in which unborn children are denied legal protection is abortion, and that deal is only because of the dictates of Roe. Roe has become increasingly isolated on this point, as on many others.”

And Roe hasn’t been accepted in the broader culture. As Clarke Forsythe noted in his excellent book on Roe v. Wade, “What makes abortion uniquely controversial is that the Justices have sided with a small sect–7 percent of Americans–who support abortion for any reason at any time. And the Justices have for forty years prevented the 60-70 percent of Americans in the middle from deciding differently. The conflict between public opinion and the Supreme Court’s nationwide policy is one key reason why Roe is uniquely controversial.”

The March for Life is evidence of this. Every year, huge crowds filled with young people assemble in Washington, D.C. to protest the Court’s decision and to support the culture of life. These hundreds of thousands understand that the Court didn’t settle this issue. They understand that despite what the Court said in Casey the Court does not “speak before all others for their constitutional ideals.” In addition, the marchers understand that there is hope for the eventual reversal of Roe v. Wade and for the ultimate protection of the unborn.

Although the March for Life is largely ignored by the media, the energy and passion and joy of those who stand for life are helping to keep the issue abortion alive. The errors of Roe v. Wade and the decision’s negative consequences are more apparent with every passing year. In the end, the truth about the humanity of the unborn and of the importance of protecting the dignity of every human life will prevail.

Richard Myers

Richard S. Myers, the Vice-President of UFL, is Professor of Law at Ave Maria School of Law, where he teaches Antitrust, Civil Procedure, Conflict of Laws, Constitutional Law, and Religious Freedom. He is a Phi Beta Kappa graduate of Kenyon College and earned his law degree at Notre Dame, where he won the law school's highest academic prize. He began his legal career by clerking for Judge John F. Kilkenny of the U.S. Court of Appeals for the Ninth Circuit. Professor Myers also worked for Jones, Day, Reavis & Pogue in Washington, D.C. He taught at Case Western Reserve University School of Law and the University of Detroit Mercy School of Law before joining the Ave Maria faculty. He is a co-editor of St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (Catholic University of American Press, 2004) and a co-editor of Encyclopedia of Catholic Social Thought, Social Science, and Social Policy (Scarecrow Press, 2007). He has also published extensively on constitutional law in law reviews and also testified before Congressional and state legislative hearings on life issues. Married to Mollie Murphy, who is also on the faculty at Ave Maria School of Law, they are the proud parents of six children - Michael, Patrick, Clare, Kathleen, Matthew, and Andrew. http://www.avemarialaw.edu/index.cfm?event=faculty.bio&pid=11705E7D4E0111010366