Roe v. Wade: A Constitutional Travesty


This week marks the 40th anniversary of Roe v. Wade, the landmark Supreme Court case that imposed legalized abortion on the entire nation.  Many Catholics will, as is proper, pay particular attention to the intellectually indefensible and morally disastrous core principle of Roe: that there can be a right to kill a human being who is not guilty of any crime and who is not an aggressor.  It is also worth reminding ourselves, however, that Roe is also a train-wreck as an act of Constitutional interpretation.  This is an especially important point for American Catholics, and all pro-life Americans, since it reminds us that the abortion right is not really part of our constitutional regime but instead an abuse of it.

Roe claims that there is a constitutional right to abortion.  The obvious infirmity of this claim is — as Justice Scalia never tires of pointing out — that the word “abortion” is never used in the Constitution.  The document is utterly silent on the question, which leaves states free to legislate on it according to their own best judgment.

But, defenders of Roe will respond, abortion is an aspect of the right of privacy.  This, however, gets us no further.  The Constitution also says nothing about a right of privacy.  To be sure, there are certain passages — say, in the 3rd and 4th Amendments — that can be understood to protect specific kinds of privacy.  But there is nothing that adds up to a substantive right of privacy placing some kinds of acts beyond the government’s power to regulate.

Finally, the defenders of Roe might respond that just because the right is not articulated explicitly in the text does not mean that it is not to be protected.  There is a tradition of the Supreme Court intervening to protect non-textual rights that are thought to be fundamental.  Of course, that the Court has done this from time to time does not make it right.  Nevertheless, even if we grant that this kind of ruling can be appropriate, it does not save Roe.  The usual standard for protecting a non-textual right is that it is deeply rooted in the nation’s traditions.  Here we might think of the presumption of innocence in criminal procedures, a principle that is almost like the legal air we breath but that is not mentioned in the Constitution.  There can be no credible claim that a right to abortion is deeply rooted in the nation’s traditions.  It was commonly understood as wrong under the common law, and numerous state statutes going back into the 19th century treated it as a crime.  Given that historical background, the idea that a right to abortion is deeply rooted in our traditions is impossible to swallow.  In any case, when they are being candid most liberals speak about the right of abortion as a manifestation of “progress,” which is itself an admission that it is not to be found in our traditions.

I suppose that many proponents of abortion will reject these constitutional arguments out of hand as arising from conservative or Catholic moral opposition to abortion.  They might be interested in the following article, in which the Washington Times‘s Tim Carney provides excerpts from the comments or writings of many highly intelligent public figures, many of them constitutional lawyers, who support abortion rights but who also admit that the reasoning in Roe v. Wade is an intellectual shambles.

The views expressed here are those of the author, and do not necessarily represent the views of


About Author

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press), The Right Darwin? Evolution, Religion, and the Future of Democracy (Spence Publishing), and All Shook Up: Music, Passion and Politics (Spence Publishing), and the editor of a collection of essays entitled Magnanimity and Statesmanship (Lexington Books). His articles have appeared in the Review of Politics, Interpretation: A Journal of Political Philosophy, Perspectives on Political Science, and First Things. He is a regular contributor to the online journal The Public Discourse. Holloway was a 2005-06 William E. Simon Visiting Fellow in Religion and Public Life in the James Madison Program at Princeton University. He received his Ph.D. in political science from Northern Illinois University in 1998.

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