Response to Jason Ezard

Social Science Research Network, 2007

2016

ROE AS WE KNOW IT AFTER ROE: THE LOST HISTORY OF THE ABORTION DEBATE. By Mary Ziegler. Cambridge: Harvard University Press. 2015. Pp. xxiv, 367. $39.95.INTRODUCTIONThe petitioners in last year's historic same-sex marriage case cited most of the Supreme Court's canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control1 and the right to guide the upbringing of one's children,2 was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases.3 Not once, however, did the petitioners or the majority in Obergefell cite the Court's most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade.4To understand why both sides in Obergefell treated Roe as a negative precedent for judicial recognition of same-sex marriage, it is necessary to look beyond Roe itself to the familiar narrativ...

On the evening of September 22, Simmons hosted a virtual conversation with faculty, practitioners, policymakers, and providers who discussed the impact of the Supreme Court's recent Dobbs Decision. The panelists drew attention to h i i l i f d i i h i d Home News

University of Pittsburgh Law Review

The abortion debate has escalated once again, taking on a new urgency in the wake of the Supreme Court's previously denying emergency relief in Whole Woman's Health v. Jackson and now deciding Dobbs v. Jackson Women's Health Organization. In Whole Woman's Health, a majority of the Court declined the request to enjoin a Texas statute banning abortions at roughly six weeks, thereby permitting the law to go into effect. In Dobbs, the Court reconsidered and overturned Roe's "essential holding," which had established roughly fifty years ago that previability bans on abortion were unconstitutional.

1987

For a decade and a half, Americans United for Life has gathered together the best legal, ethical, theological and medical minds of the pro-life movement to combat abortion , infanticide and mercy killing. In my opinion, this book represents AUL's highest accomplishment. Uniformly, the articles in this work are superb, well-researched, canifully conceived and to the point. This book will become a classic of pro-life literature as it presents so me of the sharpest criticism of that dreadful decision, and anyone concerned with the reversal of Roe v. Wade must read this book. Abortion and the Constitution is a compilation of essays written by presenters at an AUL Conference, "Reversing R oe v. Wade through the Courts" on March 31 , 1984, and in it, the decision itself is minutely analyzed, its historical research criticized, its legal arguments scrutinized and its legal conclusions subjected to scathing criticism. In doing this, Abortion and the Constitution presents the finest critique of this decision yet made. Michael Pearce Pfeifer traces the history of Supreme Court reversals , and he notes that the court has regularly and frequently reversed its previous decisions. The average time of reversal is 24 years, but in some instances it has only taken a matter of months for the court to reverse itself. Richard Myers compares the civil liberties case of Brown v. Board of Education and Roe and he notes that the meticulous research, prudent timing and unswerving commitment of Thurgood Marshall to the cause of promoting Black civil rights won the day for them. What is critical in bringing about reversals is presenting such overwhelming evidence that the court can draw no other conclusion but that the previous decision should be reversed. He urges pro-life litiga nts to follow Marshall's tradition, not overreact to the situation, and to avoid some of the indiscretions of the past. Myers argues that the best strategy is to stress that limiting and restricting abortion is in the state's interest, and he feels that other plans would not be as fruitful. He properly warns for the need for caution and deep awareness of the many cross currents that confront the court in decisions such as Roe. Dennis Horan and Burke Balch argue in "Roe v. Wade: No Justification in History, Law or Logic", that major legal and social trends of the 18th, 19th, and 20th centuries were reversed by the decision. In a scathing criticism of the decision, they note the feeble foundations in history and law of the decision. And in a minute critique of the decision, they show the inferior scholarship of the Roe court. John East and Steven Valentine argue in "Reconciling Santa Clara and Roe v. Wade: A Route to Supreme Court Recognition of Unborn Children as Constitutional Persons", that the weakest aspect of Roe was its declaration of the nonpersonhood of the unborn. In Santa Clara the court held corporations to be legal persons, and yet it denies that the living, breathing and growing unborn child was not a person. Like other authors, they cited Robert Destro's famous article: "Abortion and the Constitution:The Need for a Life-Protective Amendment", to bolster their claims. What is regrettable is that Professor Destro was not a presenter at the symposium. His article had a major impact on the pro-life movement when it was published 10 years ago, and his reflections on the issues years later would have been most enlightening and helpful.

It is true that change of opinion of the US Supreme Court from allowing abortion in Roe v. Wade in 1973 to prohibiting it in Dobbs v. Jackson in 2022 does not relate to Pakistan and to the other countries of the world, but does this mean that it has nothing to offer for people and policy makers of other countries? The fact of the matter is that it does offer lot of food for thought for all especially the political scientists, policy makers, law makers and judges. The debate in these two judgements is not about abortion, it is about the way law making takes place and how it gets revised over a period of time. Framing it around abortion only is limiting its scope and the real debate of decision making and law making in the society is usually blurred and put on backburner. In this context, some thoughts are recorded:

Goodreads.com, 2022

The revolutionary Opinion of the Court in the Dobbs case explicitly overruled Roe and Casey. That majority opinion, along with Judge Thomas's concurring opinion, may also signal the beginning of the end for the Supreme Court's invocation of substantive due process to secure unenumerated constitutional rights.

SSRN Electronic Journal

Roe v. Wade 1 is both a case and a symbol. It is the rare Supreme Court case that Americans know. 2 It holds a special place in constitutional law, remaining openly and intensely contested after nearly half a century, despite continuing popular support. 3 To those who support abortion rights, Roe demonstrates the Court's crucial role in protecting individual rights in the face of determined political opposition. For its critics, Roe was the work of an "unelected" Court creating new constitutional rights; supposedly, by deciding matters properly left to democratic determination, the Court inflamed conflict over abortion and riled our politics. 4 We explain the origins of the abortion right and conflicts over it differently. The story we tell is not simply a litigation history of a landmark case, but instead a story about the democratic foundations of our constitutional law. We start our account of the abortion conflict before litigation begins. Conflict enters the picture well before the courts do, as people argue over the Constitution's meaning in their everyday lives. We recount how citizens who lacked power in any conventional sense were able over time to change the way the nation and its courts understood longstanding guarantees of liberty, of equality, and of life.

Cambridge Quarterly of Healthcare Ethics

The reversal of Roe v. Wade by the U.S. Supreme Court allowed the states to regulate terminations of pregnancy more autonomously than during 1973–2022. Those who think that women should be legally entitled to abortions at their own request are suggesting that annulling the reversal could be an option. This would mean continued reliance on the interpretation of privacy that Roe v. Wade stood on. The interpretation does not have the moral support that its supporters think. This can be shown by recalling the shortcomings of Judith Jarvis Thomson’s famous violinist example and its application to abortion laws. Philosophically better reasons for not restricting access to abortion can be found in a simple principle of fairness and in sensible theories on the value of human life. Whether or not philosophy has any use in the debate is another matter. Legal decisions to regulate terminations are probably based on pronatalist state interests, shared by the apparently disagreeing parties and i...