fox files

You’ve surely heard that a Supreme Court decision overturning Roe vs. Wade has been leaked to the public.

Let me say from the outset: nothing is more certain than a stream of outraged emails about this issue presently being submitted. But I still feel it necessary to speak up about something I believe in and not avoid it just because I thought it’s what people simply wanted or didn’t want to hear.

The leaked decision has Samuel Alito declaring that the legal reasoning in Roe was “exceptionally weak.” Of course, the “trust the science”/”15 days to stop the spread”/”here’s my Ukrainian flag even though I haven’t given a rat’s behind about any other war for the past 20 years” people are predictably registering their outrage over such a statement.

But Alito’s statement isn’t even debatable. In fact, legal scholars at the time and over the years, despite generally favoring abortion themselves, have been known to admit that the legal reasoning in Roe was flimsy to nonexistent.

Thus in 1973, the very year of that fateful decision, John Hart Ely, himself sympathetic to abortion, attacked the Court’s legal reasoning in the Yale Law Review, arguing that the legal rationale for the decision was simply made up. Roe, he wrote, 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.”

Geoffrey R. Stone, who was a law clerk to Justice William Brennan at the time, later admitted: “Everyone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary.'”

According to Edward Lazarus, who clerked for Roe‘s author, Justice Harry Blackmun:

As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe‘s author like a grandfather. . . . .

What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. …

The proof of Roe‘s failings comes not from the writings of those unsympathetic to women’s rights, but from the decision itself and the friends who have tried to sustain it. Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe‘s announcement, no one has produced a convincing defense of Roe on its own terms.

Even Yale’s Harold Koh, who clerked for Blackmun, was reduced to saying: “I’d rather have Blackmun, who uses the wrong reasoning in Roe to get to the right results, and let other people figure out the right reasoning.”

In other words: Blackmun was full of it, but since I like the results, I guess the law — which I’m supposed to have devoted my life to — really doesn’t matter.

The United States has a federal system in which the central government has a few enumerated powers, with the rest reserved to the states. No authority to regulate abortion was ever delegated to the central government, so it remains with the states. All the convoluted legal reasoning in the world cannot evade this simple and exceptionally obvious fact.

But as Robert Barnes said in his interview on the Tom Woods Show that comes out this week, the law schools are churning out judges who pretend the law says whatever they need it to say in order to get the outcomes they want.

Is that really the society you want?