Is Abortion Unconstitutional?

early 50 years after it was decided, Roe v. Wade (1973) and the purported constitutional right to abortion it established remain remarkably controversial. During my adult lifetime, this controversy has revolved around the soundness (of unsoundness) of Roe as a matter of constitutional interpretation; the goal of appointing justices who would overturn Roe as a precedent, returning the issue of abortion to the states; discerning the limits of the states’ right to regulate abortion under Roe and its progeny; and, to a lesser extent, the efficacy of enacting a Human Life Amendment that would not only overturn Roe but expressly ban abortions in most cases. Liberals defend Roe v. Wade as a necessary and legitimate safeguard of a woman’s “right to choose,” and criticize any state restrictions on abortion as harmful to women. The doctrinal basis for a constitutional right to an abortion has always been, and remains, flimsy. When a bitterly-divided Supreme Court cobbled together a rationale for upholding Roe in Planned Parenthood v. Casey (1992), the majority had to resort to what critics derisively refer to as the mystery passage. Read Full Article »