Abortion Constitutionality

Overruling Roe v. Wade: Lessons from the Death penalty

Here is a link to an article by Paul Linton on overruling Roe v. Wade. With the Supreme Court’s grant of cert in Dobbs, this article couldn’t be more timely.

Here is a portion of the abstract:

“This article argues that, just as Justices Brennan and Marshall misread the “signs of the times” regarding the death penalty in Furman, so, too, did the Supreme Court in Roe v. Wade (1973), when it effectively struck down the abortion statutes of all fifty States. Roe placed great weight on the facts that seventeen States had liberalized their abortion laws and that leading professional organizations favored the repeal or substantial revision of state abortion laws. Roe, however, ignored that fact that the other thirty-three States had not liberalized their statutes and that, in thirty-one of those States, bills to relax or eliminate restrictions on abortion were introduced, but never enacted. Of even greater significance is that, in the almost fifty years since Roe was decided, the overwhelming majority of state legislatures have rejected Roe and its refusal to recognize that unborn human life is worth of protection. States have passed resolutions calling for constitutional amendments to overturn Roe, retained pre-Roe laws prohibiting abortion, enacted post-Roe laws that would prohibit abortion upon the overruling of Roe, enacted a myriad of statutes that prohibit abortions before viability and extended the protection of the law to unborn children in a variety of areas outside the context of abortion, including criminal law, tort law and health care law. The article submits that, just as the Court had to revisit the issue of the constitutionality of the death penalty in light of society’s reaction to Furman, so, too, the Court should revisit the issue of abortion in light of the country’s massive repudiation of Roe.”


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.