Roe vs. Wade Was No Misstep : Court Was Wise to Base Abortion Decision on Idea of Liberty

Whatever the U.S. Supreme Court decides about the constitutionality of state regulation of abortion, its decision is apt to be misunderstood. Much of the popular concern about this week’s argument in Webster vs. Reproductive Health Services--the Missouri case raising the issue of overruling Roe vs. Wade--has been on the moral issues about abortion. These are the issues, first, of what moral interests are possessed by fetuses, if any, and second, how those interests balance off against women’s liberty over their own bodies.

Much of the argument to the court will not be about these issues, however. Rather, the legal focus will be on the question of who gets to decide the moral issues about abortion--the various state legislatures, or the U.S. Supreme Court. Such a focus is inevitable in light of the kind of criticism Roe vs. Wade has received in legal circles since it was decided 16 years ago.

This criticism has been of three kinds. Some have claimed that the court was engaged in “noninterpretive review” when it decided Roe. Noninterpretive review is decision-making that does not interpret the law but makes it up according to the court’s own value judgments. A second claim concedes that the court was interpreting something when it decided Roe, but that it wasn’t the written text of the Constitution. Rather, it was interpreting some less legitimate, unwritten “text” (social consensus, natural law or the text created by the court’s own prior decisions). A third claim concedes that the court was interpreting the written Constitution, but argues that the kind of interpretive practice that the court brought to bear in deciding the case functioned like noninterpretive review in the freedom given the court to impose its own value judgments.

The common core of these criticisms is that the court did something improper in its 1973 decision limiting the ability of the states to regulate abortion. The suggestion is that in a democratic society, courts are to overturn legislative decisions only when the Constitution requires that they do so--not when judges’ own predilections happen to be against such decisions. Noninterpretive review, interpretation of some unwritten constitution or free-wheeling interpretive methods are simply different ways of substituting judicial judgment for that of the legislatures, and they are for that substitution condemned.

Abstractly stated, these three criticisms are not without merit, for we do not want courts deciding all issues of social policy. The mistake is to think that such criticisms have any application to what the court did in Roe. In deciding Roe, the court was bound by our tradition of judicial review to interpret the meaning of the word liberty as it appears in the 14th Amendment. There is no escape from that responsibility in a system such as ours, which allows the majority to rule only insofar as it does not trample on those rights of the minority as enshrined in our Constitution.

Liberty could have been given a less substantive reading than the court gave it in Roe. But surely it is at least a plausible reading to say, as the court did, that a woman’s liberty includes the right to choose how her body will be used, that it is not the state’s business to tell her how it must be used. While one might disagree with this reading of liberty, it is hard to see how one can disagree with the proposition that it is the Supreme Court’s business to decide whether state legislatures have any business regulating a woman’s liberty in this intimate sphere.

Contemporary judicial conservatives tend to think otherwise. They think the court should not develop and apply its own best view of liberty to issues such as abortion but should instead defer to “framers’ intent” or “original understanding.” What such conservatives wish to forget is that the framers of 1791 and 1868 did not have such a crabbed view of our Constitution.

The real federalists such as Madison and Hamilton--unlike those conservatives like Justice Antonin Scalia who call themselves federalists today--believed that each person had rights that existed before our Bill of Rights was written. They believed that the Constitution was a fair document for each citizen only because it preserved those rights from governmental encroachment. When they wrote phrases like “freedom of speech,” or “liberty,” into our Constitution, they did not think that they or anyone else had a monopoly on what such words meant. Precisely because there was a right to liberty that they were not creating but merely referring to when they used the word liberty , their own views of the nature of that right could not be determinative or even relevant.

The only framers’ intent or original understanding that is relevant to what liberty means is the intent of the framers to name a right each person has against unwarranted governmental interference, whatever the nature of that right should prove to be. Those who are the guardians of such rights in our system--the courts--have to develop their own theory of liberty. To criticize them for doing so is to miss the point of that constitutional accommodation between majority rule and minority right that for 200 years we have honored with the phrase “the Madisonian compromise.”