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In honor of this country’s focus on Roe v. Wade and the media’s implication that the only Supreme Court cases a Justice Samuel Alito Jr. would rule on are abortion related, I sat down recently to read the late Justice Harry Blackmun’s 32-year-old decision. It’s a rambling monstrosity, lacking coherency and any genuine basis in constitutional law. And this conclusion is from someone generally supportive of a woman’s right to an abortion. That’s not to say that Blackmun was slipshod. Quite the contrary. He was deliberate and careful, returning to the Mayo Clinic (where he was once general counsel) to research the decision. And it was even praised by the Court’s junior member and Roe dissenter, William Rehnquist. In a note to Blackmun, Rehnquist wrote: “I have to take my hat off to you for marshalling as well as I think could be done the arguments on your side,” according to Becoming Justice Blackmun by Linda Greenhouse. But Blackmun’s decision is disjointed. He notes that abortion was legal in ancient Rome (so was infanticide), and places a fair amount of weight on common law. His trimester framework, noting that the state could not prohibit abortions in the first trimester but could issue regulations during the second trimester and even ban abortion in the third trimester, almost seems judicially irresponsible. One must wonder, how many of Roe‘s proponents today (constitutional scholars aside) have read the landmark case? That’s where Jack Balkin’s insightful new book, What Roe v. Wade Should Have Said, comes in. Balkin, knight professor of constitutional law and the First Amendment at Yale Law School, creates a simple experiment. Establish a mock Supreme Court made up of leading constitutional scholars and ask, “How would you have written the Roe opinion in 1973 if you knew then what you know now about the subsequent history of the country?” Balkin only asks that the scholars omit any references to future events. Taking the role of chief justice, Balkin supports Roe‘s essential holding protecting a woman’s right to choose. He says that women have the right to decide whether to become parents and the right not to be forced by the state “to sacrifice their lives or their health in order to bear children.” But he also notes that these rights are subjected to “reasonable regulation” and that the state has a vested interest in protecting the life of the unborn after a certain point in a pregnancy. Balkin essentially adopts Justice Sandra Day O’Connor’s yet-to-come “undue burden” standard by requiring legislators to set specific time frames for when a woman may seek an abortion. Other “justices,” such as University of Pennsylvania Law School professor Anita Allen, take exception to legislative time limits. She suggests that the Constitution require a “judicial bypass mechanism to seek the right to otherwise prohibited abortions” past a legislatively set date. But these solutions seem to complicate the decision as much as Blackmun’s trimester burden. What is a reasonable period? It seems the requirement would burden the Court for years. And Allen’s eerily triumphant line “It is for the benefit of unborn and born women, present and future women, that we grant constitutional abortion liberty today” is wildly discomforting, especially when contrasted with the more moderate approach of Sen. Hillary Clinton (D-N.Y.), who recently said abortion represents “a sad, even tragic choice to many, many women.” Probably the most impassioned argument for Roe comes from Jed Rubenfeld, another Yale law professor. He flatly states that the law cannot force women to bear children against their will and calls the restrictive Texas law at the heart of Roe “barbarism” that “has no place under our Constitution.” Legal scholar Jeffrey Rosen, with his constitutionally based dissent, offers the most clarity. Noting that a national consensus in favor of greater abortion freedom had yet to evolve in 1973 (only four states allowed doctors to perform first-trimester abortions with virtually no restrictions), he writes, “If a supermajority of states chose, in time, to follow this lead . . . then we as judges might plausibly conclude that our national traditions about abortion had decisively changed.” The book also illuminates the historical context of the women’s rights movement in 1973. Congress had already extended the prohibition on sex discrimination to state and local governments and had sent the Equal Rights Amendment to the states for ratification. In light of such a legislative desire to end inequalities, one has to think of the debate this country could have had over abortion had the Court not usurped the discussions. Instead, today, the abortion debate is cursory, interest-group based, and largely relegated to the marble steps outside the Supreme Court.
Joe Crea can be contacted at [email protected].

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