2. It has no real Constitutional basis.
Even many pro-abortion scholars admit that Roe was a badly decided case. Megan McArdle wrote a commentary the Washington Post (7/4/18) on how she’s “Pro-choice and against Roe,” and states: “The decision itself is a poorly reasoned mess.”
Justice Harry Blackmun wrote “Roe v. Wade.” A retired judge, Randall Hekman, once told me: “Some of the clerks that worked for the justices referred to the draft of Justice Blackmun’s opinion as ‘Harry’s abortion.’ It was that bad.”
The whole thing was based on the “right to privacy,” which is not spelled out in the Constitution. Instead it comes from “Griswold vs. Connecticut” (1965), which stated: “…specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance…Various guarantees create zones of privacy.”
What is a “penumbra”---the lynchpin of the “Constitutional basis” ultimately for “Roe”? I once asked that of constitutional attorney Mike Farris, who today is the head of the Alliance Defending Freedom.
Farris told me: “I had to take a course in astronomy to have any idea of what they were talking about. A penumbra is a shadow cast by a partial eclipse of the moon. The Bill of Rights doesn’t have umbras and penumbras. It has words. It has meaning. It has context. And these made-up phrases, like the emanations coming from the penumbras of the Bill of Rights is just so much hooey that allows a judge to do whatever he wants to do. And it substitutes the rule of law for the rule of a judge’s personal proclivities.”
Roe is part of a recent tradition that views the Constitution as a living document subject to change---leading us to be governed by the whims of a handful of judges with lifetime tenure.
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