.realaxelfoley and irin discuss Roe’s unsteady legal foundations and whether conservatives have merely used them as an excuse to gut abortion rights.
The Supreme Court lineup that decided Roe v. Wade. Photo: Bettmann Archive via Getty Images In their fervent efforts to get rid of the constitutional right to an abortion, conservatives have long argued that Roe v. Wade was, as Justice Samuel Alito wrote in his leaked draft decision, “egregiously wrong from the start.” I spoke with senior correspondent Irin Carmon about Roe’s unsteady legal foundations and whether conservatives have merely used them as an excuse to gut abortion rights.
Her case was mooted when the military changed its policy; the justices who wrote Roe didn’t accept the equal protection arguments that were made in an amicus brief, and [Harry] Blackmun stuck to both a right to privacy and, rhetorically, a doctor’s right to practice his profession, which Ginsburg hated. She also thought an incremental approach would have worked better.
Ben: Yes, that’s what I’m wondering. Conservatives have argued for decades, in essence — “this should have been a matter for elections and legislatures, not courts, to decide all along.” Okay, so would this really have been a settled issue if Congress had passed a nationwide law guaranteeing a right to abortion in 1973, instead of the Supreme Court weighing in? It doesn’t seem exceedingly likely.
Ben: So it wasn’t like people immediately saw the flaw in the legal reasoning and were outraged. That all happened later.Ben: Alito wrote that Roe is different from other contentious decisions that guaranteed Americans rights because abortion is not “deeply rooted” in American traditions. But determining what fits the category of “deeply rooted” seems no less arbitrary than finding new rights in the Constitution that weren’t explicitly written down.
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