{"id":4419,"date":"2026-06-01T12:53:28","date_gmt":"2026-06-01T17:53:28","guid":{"rendered":"https:\/\/gchristopherscruggs.com\/?p=4419"},"modified":"2026-06-01T12:53:28","modified_gmt":"2026-06-01T17:53:28","slug":"the-ambivalent-legacy-of-roe-v-wade","status":"publish","type":"post","link":"https:\/\/gchristopherscruggs.com\/?p=4419","title":{"rendered":"The Ambivalent Legacy of Roe v. Wade"},"content":{"rendered":"<p style=\"font-weight: 400;\"><em><a href=\"https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/07\/download.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignright size-full wp-image-4082\" src=\"https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/07\/download.jpg\" alt=\"\" width=\"282\" height=\"179\" \/><\/a>Roe v. Wade<\/em>, perhaps the most debated and in some quarters, vilified Supreme Court opinion of the 20th century, arose from appeals in Texas and Georgia challenging their state abortion laws.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn1\" name=\"_ftnref1\">[1]<\/a> In <em>Roe<\/em>, the Court recognized (or created) a right to abortion, building on its earlier decision in <em>Griswold v. Connecticut.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn2\" name=\"_ftnref2\"><strong>[2]<\/strong><\/a><\/em> The majority opinion, written by Justice Blackmun, acknowledged the abortion debate\u2019s emotional and moral dimensions. In the end, however, the majority ruled both the Texas and Georgia statutes unconstitutional. Because the Texas and Georgia laws were similar to those in most states at the time, the decision effectively created a universal right to abortion in the United States.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn3\" name=\"_ftnref3\">[3]<\/a><\/p>\n<p style=\"font-weight: 400;\">Before I begin, I want to say a word to those who support <em>Roe.<\/em> I intend to write two blogs on <em>Roe <\/em>and its overturning. In the second blog, I promise to give due credit to those in the minority, as I have done here. By this, I do not mean to apologize for my views on <em>Roe,<\/em> which I am well aware some readers will reject and have a right to do so.<\/p>\n<p style=\"font-weight: 400;\"><strong>Controversy and Impact<\/strong><\/p>\n<p style=\"font-weight: 400;\">To say the decision was controversial is to understate its impact. Supporters of abortion rights hailed the decision.On the other side of the argument,<em> Roe<\/em> immediately led to the creation of a \u201cpro-life movement\u201d determined to overturn it. It has been and remains an issue in state, local, and national elections. Politically, the decision led to a realignment within the Democratic and Republican parties, as each became more uniformly aligned with one side of the debate, losing members to the other party who disagreed with their position on <em>Roe<\/em>. The result was an increase in the political polarization we see today.<\/p>\n<p style=\"font-weight: 400;\">The decision\u2019s impact was felt among American religious groups as well. What are sometimes called \u201cthe Mainline Churches\u201d largely embraced the decision, giving rise to pro-life ministries within every mainline church. Evangelical groups generally opposed the decision on moral grounds and became home to many departing mainline members. Roman Catholics and evangelicals, once suspicious of one another, united in their opposition to <em>Roe <\/em>and its results.<\/p>\n<p style=\"font-weight: 400;\"><strong>Planned Parenthood of Southeastern Pa. v. Casey and Beyond<\/strong><\/p>\n<p style=\"font-weight: 400;\">Following <em>Roe<\/em>, the Court entered a period of both upholding and limiting the decision\u2019s scope, allowing greater flexibility for states to regulate abortion. As I shall point out, the Court was forced by its own decision to engage in case-by-case decision-making as it weighed questions such as when life begins, when a fetus is viable, what rights parents and spouses might have, and other consequences of <em>Roe.<\/em> In the end, the fundamental incoherence of the Court\u2019s initial decision caused the entire edifice to fail.<\/p>\n<p style=\"font-weight: 400;\">Numerous subsequent Supreme Court decisions in the area of abortion did not create a consensus as to the scope of <em>Roe<\/em> or the parameters of local state power. Finally, in <em>Planned Parenthood of Southeastern Pa. v. Casey<\/em>, the Court upheld <em>Roe<\/em>, clearly grounding <em>Roe\u2019s<\/em> justification in the 14th Amendment and attempting to find a way to resolve the conflict <em>Roe <\/em>had created.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn4\" name=\"_ftnref4\">[4]<\/a> <em>Casey<\/em> granted the states more leeway by also holding that states have a \u201csubstantial interest in potential life,\u201d leading to the conclusion that not all regulations were prohibited. <em>Casey<\/em> instituted an \u201cundue burden standard\u201d as the appropriate means of reconciling the State&#8217;s interest with the right created by <em>Roe<\/em>.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn5\" name=\"_ftnref5\">[5]<\/a> \u00a0While these decisions upheld the central holding in <em>Roe<\/em>, they returned considerable power to regulate abortion to the states.<\/p>\n<p style=\"font-weight: 400;\">Over the years, in case after case, the scope of Roe was gradually reduced as the Court was faced with the necessity to review numerous attempts by state legislatures to restrict abortion, which disagreed with the open-ended nature of the decision. Just a few of these include:<\/p>\n<ul>\n<li><a href=\"https:\/\/www.law.cornell.edu\/supremecourt\/text\/428\/52\"><em>Planned Parenthood v. Danforth<\/em><\/a>(1976), blocking a law requiring spousal consent for abortion.<\/li>\n<li><a href=\"https:\/\/www.law.cornell.edu\/supremecourt\/text\/432\/464\"><em>Maher v. Roe<\/em><\/a>(1979) permitting states to exclude abortion services from Medicaid coverage.<\/li>\n<li><a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/439\/379\/\"><em>Colautti v. Franklin<\/em><\/a>(1979) striking down an unconstitutionally vague Pennsylvania law requiring physicians to try to save the life of a fetus that might have been viable.<\/li>\n<li><a href=\"https:\/\/www.law.cornell.edu\/supremecourt\/text\/448\/297\"><em>Harris v. McRae<\/em><\/a>(1980), upholding the\u00a0<a href=\"https:\/\/www.law.nyu.edu\/sites\/default\/files\/ECM_PRO_075040.pdf?inline=1\">Hyde Amendment<\/a>, a federal law that proscribed federal funding for abortions except when necessary to preserve life or as a result of rape or incest.<\/li>\n<li>In\u00a0<a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/450\/398\/\"><em> v. Matheson<\/em><\/a>(1981), upholding a law requiring parental notification when the patient is a minor living with parents.<\/li>\n<li><a href=\"https:\/\/www.law.cornell.edu\/supremecourt\/text\/462\/416\"><em>City of Akron v. Akron Center for Reproductive Health<\/em><\/a>(1983), invalidating a wide range of limitations on abortion, such as a waiting period, parental consent without judicial bypass, and a ban on abortions outside of hospitals after the first trimester.<\/li>\n<li><a href=\"https:\/\/www.law.cornell.edu\/supremecourt\/text\/476\/747\"><em>Thornburgh v. American College of Obstetricians and Gynecologists<\/em><\/a>(1986) striking down a law that required informed consent to include information about fetal development and alternatives to abortion.<\/li>\n<li>In\u00a0<a href=\"https:\/\/www.law.cornell.edu\/supremecourt\/text\/492\/490\"><em>Webster v. Reproductive Health Services<\/em><\/a>(1989), upholding rules requiring doctors to test for viability after twenty weeks and blocking state funding and state employee participation in abortion services.<\/li>\n<li><a href=\"https:\/\/www.law.cornell.edu\/supct\/html\/89-1391.ZO.html\"><em>Rust v. Sullivan<\/em><\/a>(1991) upheld a ban on certain federal funds being used for abortion referrals or counseling.<\/li>\n<li><a href=\"https:\/\/www.law.cornell.edu\/supct\/html\/98-1856.ZO.html\"><em>Hill v. Colorado<\/em><\/a>(2000) upholding a law limiting protest and leafletting close to an abortion clinic.<\/li>\n<li><a href=\"https:\/\/www.law.cornell.edu\/supct\/html\/99-830.ZS.html\"><em>Stenberg v. Carhart<\/em><\/a>(2000) striking down Nebraska\u2019s ban on the\u00a0<a href=\"https:\/\/www.npr.org\/2006\/02\/21\/5168163\/partial-birth-abortion-separating-fact-from-spin\">dilation and extraction<\/a>\u00a0abortion procedure.<\/li>\n<li>In\u00a0<a href=\"https:\/\/www.law.cornell.edu\/supct\/html\/05-380.ZS.html\"><em>Gonzales v. Carhart<\/em><\/a>(2007), upholding a federal ban on the dilation and extraction procedure. <a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn6\" name=\"_ftnref6\">[6]<\/a><\/li>\n<\/ul>\n<p style=\"font-weight: 400;\">In the end, however, none of the Court&#8217;s decisions created legitimacy for <em>Roe<\/em>, and states continued to register their opposition by creating various regulatory schemes that narrowed the impact of its earlier decisions. Politically, neither side in the debate was completely happy with the ruling at any stage of its modification. Recently, in the case of <em>Dobbs v. Jackson Women&#8217;s Health Organization<\/em>, the Court overturned its previous decisions in <em>Roe. <a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn7\" name=\"_ftnref7\"><strong>[7]<\/strong><\/a> <\/em>I will deal with <em>Dobbs<\/em> in a subsequent post.<\/p>\n<p style=\"font-weight: 400;\"><strong>Substantive Due Process and Roe\u2019s Rationale<\/strong><\/p>\n<p style=\"font-weight: 400;\">The majority in <em>Roe <\/em>based their decision on a kind of \u201csubstantive due process\u201d test and rationale, (though failing to clearly articulate it), finding a right to abortion implicit in the 14<sup>th<\/sup> Amendment via the kind of right to privacy it had previously discerned in <em>Griswold<\/em>.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn8\" name=\"_ftnref8\">[8]<\/a> The classic substantive due process test is whether there is a rational relationship between the law and a valid legislative objective:<\/p>\n<p style=\"font-weight: 400;\">Substantive due process asks the question of whether the government&#8217;s deprivation of a person&#8217;s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed the proper procedures when it takes away life, liberty or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation. <a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn9\" name=\"_ftnref9\">[9]<\/a><\/p>\n<p style=\"font-weight: 400;\">In other words, if the Constitution protects a substantive right (such as freedom of speech and religion), that right can be abridged only if there is sufficient justification for such a taking. Procedural due process asks only whether the proper procedures have been followed. In <em>Roe<\/em>, the majority, drawing on <em>Griswold<\/em>, found in the 14th Amendment and other vaguely referenced provisions of the Constitution a right to abortion. Leaving aside the much-criticized reasoning of <em>Griswold<\/em>, having \u201cfound\u201d this right in the \u201cpenumbra of privacy,\u201d the Court needed to identify a reasonably unassailable basis for doing so. It failed to do so.<\/p>\n<p style=\"font-weight: 400;\">A continuing problem with <em>Roe<\/em> concerned its reasoning. The majority decision reviewed the history of abortion, making certain claims that proved historically dubious and ultimately helped those who opposed the decision. At the time, Justice Rehnquist pointed out some of these inaccuracies, which became more numerous as time passed.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn10\" name=\"_ftnref10\">[10]<\/a> Eventually, in <em>Dobbs<\/em>, the majority stated:<\/p>\n<p style=\"font-weight: 400;\">Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before\u00a0<em>Roe<\/em>\u00a0was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before\u00a0<em>Roe<\/em>.<\/p>\n<p style=\"font-weight: 400;\">Not only was there no support for such a constitutional right until shortly before\u00a0<em>Roe<\/em>, but abortion had long been a\u00a0<em>crime<\/em>\u00a0in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. <em>Roe<\/em>\u00a0either ignored or misstated this history, and\u00a0<em>Casey<\/em>\u00a0declined to reconsider\u00a0<em>Roe<\/em>\u2019s faulty historical analysis.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn11\" name=\"_ftnref11\">[11]<\/a><\/p>\n<p style=\"font-weight: 400;\">Justice Blackmun, who wrote the decision, had prior experience with the Mayo Clinic and the Cleveland Clinic and even traveled to a clinic to conduct research while writing his decision.\u00a0 One common observation about <em>Roe <\/em>is that Blackmun seemed to be as concerned to protect doctors as their patients, and showed little concern for the fetus or an understanding of family and other dynamics involved. Thus, as one sympathetic commentator puts it, \u201cThe most common explanation of how this modest man came to produce such an immodest decision draws on Blackmun\u2019s background as resident counsel for the Mayo Clinic and his admiration of the medical profession.\u201d<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn12\" name=\"_ftnref12\">[12]<\/a> As one critical commentator puts it:<\/p>\n<p style=\"font-weight: 400;\">Justice Blackmun&#8217;s amateur dissertation on medical ethics, including the Hippocratic Oath, and on ancient philosophy has been challenged on several points and been revealed as based primarily upon biased pro-abortion sources. The more fundamental question, however, as put by one commentator, is &#8220;why Plato and Aristotle should be considered authority for such a controversial moral and political issue, or how the support of philosophers provides a persuasive legal or institutional argument for the Court&#8217;s expansion of privacy rights. &#8221; Surely Justice Blackmun did not mean to suggest that, because infanticide also was practiced in the ancient world, a constitutional right to infanticide should follow. And yet, Justice Blackmun offered extraneous non-legal observations of questionable accuracy to justify judicial activism.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn13\" name=\"_ftnref13\">[13]<\/a><\/p>\n<p style=\"font-weight: 400;\"><strong>Limitations and the \u201cTrimester Approach\u201d<\/strong><\/p>\n<p style=\"font-weight: 400;\">Once the Court identified a right in the Constitution and how it applies under the law, it needed to clarify the situations where states could legislate in this area. This means determining when a state\u2019s interest was strong enough to justify interfering. In <em>Roe<\/em>, the Court decided that women have a constitutional right to privacy, including the right to abortion, which could not be restricted without good reason. The decision further acknowledged that reasonable limits on this right could exist. However, over time, the approach the Court used to define these limits proved to be increasingly inadequate and often illogical.<\/p>\n<p style=\"font-weight: 400;\">One of the most difficult elements of <em>Roe<\/em> was its setting out a \u201ctrimester approach\u201d to dealing with when the state might have a controlling interest in regulating an abortion. Under this approach, the pregnancy period into three trimesters. During the first trimester, the decision to terminate the pregnancy was solely at the discretion of the woman. There could be no compelling state interest. After the first trimester, the state could \u201cregulate procedure\u201d provided there was such an interest. During the second trimester, the state could regulate abortions in the interests of the mother\u2019s health. After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn14\" name=\"_ftnref14\">[14]<\/a><\/p>\n<p style=\"font-weight: 400;\">The courts\u2019 problem with the trimester approach is simple: the viability question is not straightforward. As one expert put it, \u201cRoe v Wade is based on the trimester\/viability concept. However, both concepts seem to be biologically ill-founded and are likely to contribute to confusion regarding abortion laws.\u201d<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn15\" name=\"_ftnref15\">[15]<\/a> In subsequent cases, the Court faced difficult decisions in which the judges\u2019 personal preferences inevitably seemed to influence the outcome. In some, such as Gonzales and Stenberg, the decisions seem to have been motivated not by conviction about justice but by changes in the composition of the Court. This was a clear indication that <em>Roe<\/em> was ultimately not founded on the language of the Constitution but on the preferences of the unelected members of the Supreme Court on a matter of public policy.<\/p>\n<p style=\"font-weight: 400;\"><strong>Summary Critique<\/strong><\/p>\n<p style=\"font-weight: 400;\"><a href=\"https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/11\/IMG_3019-scaled.jpeg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignright size-medium wp-image-4207\" src=\"https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/11\/IMG_3019-240x300.jpeg\" alt=\"\" width=\"240\" height=\"300\" srcset=\"https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/11\/IMG_3019-240x300.jpeg 240w, https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/11\/IMG_3019-819x1024.jpeg 819w, https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/11\/IMG_3019-768x960.jpeg 768w, https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/11\/IMG_3019-1229x1536.jpeg 1229w, https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/11\/IMG_3019-1638x2048.jpeg 1638w, https:\/\/gchristopherscruggs.com\/wp-content\/uploads\/2025\/11\/IMG_3019-scaled.jpeg 2048w\" sizes=\"auto, (max-width: 240px) 100vw, 240px\" \/><\/a>As I complete this brief review of <em>Roe<\/em>, I want to return to something mentioned earlier. Roe was really two cases, <em>Roe v. Wade<\/em> and <em>Doe v. Bolton<\/em>.<a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn16\" name=\"_ftnref16\">[16]<\/a> The Texas case (Roe) represented an older, more restrictive approach, while the Georgia case (Doe) represented a newer, more liberal approach. In other words, Texas and Georgia represented different approaches to the issue. Other states were similarly divided. The Texas case represented an older approach, while the Georgia case involved a newer approach based on the legislature\u2019s analysis of the American Bar Association proposal of the time.<\/p>\n<p style=\"font-weight: 400;\">By \u201cconstitutionalizing abortion\u201d in the way it did, the Court cut off the power of states to adjust their laws\u2014and their responsibility to do so. The citizens of the United States have the power to propose and adopt amendments to the Constitution, and they have even more power to address their state legislatures. The impact of <em>Roe<\/em> was to take this right away from the citizens and to take the right to adapt to local circumstances away from state legislatures. In the process, it set off a firestorm of opposition and undermined the Court\u2019s standing for over half a century.<\/p>\n<p style=\"font-weight: 400;\">This weakness is closely related to a second weakness: to reach its decision, the court had to weigh the public value of abortion as a legislature might and determine matters of the public interest and the exercise of police powers to regulate the conduct of its citizens, a task for which nine judges in Washington are not well suited. Subsequent to <em>Roe,<\/em> the court had to abandon the trimester system in favor of Casey\u2019s \u201cundue burden\u201d standard, which further embroiled the court in determining, on a case-by-case basis, what constituted an undue burden. By doing so, it became a kind of federal abortion review agency without the presumption of validity of its decisions to protect it from attacks. As previously mentioned, Blackmun\u2019s historical arguments were immediately attacked by members of the court and others. In some cases, Blackmun had either misstated or understated the historic opposition to abortion, at least since the Second Century.<\/p>\n<p style=\"font-weight: 400;\">Finally, and I think most damaging, was that the 14<sup>th<\/sup> Amendment was not intended to address abortion. The 14th Amendment was designed to ensure former slaves\u2019 access to the rights of every other American. In particular, it was intended to prevent states from denying former slaves the voting and economic rights enjoyed by all Americans. Without question, the 14<sup>th<\/sup> Amendment was intended to enshrine the notion that all citizens, regardless of race, color, or socio-economic class, had the right to \u201clife, liberty, and property,\u201d rights that were inalienable.<\/p>\n<p style=\"font-weight: 400;\">After the Civil War, the Court mistakenly began to use the amendment to protect corporate property rights. The phrase \u201cwithout due process of law\u201d almost certainly refers to the fact that people can be executed, imprisoned, and their property taken under certain circumstances if due process of law is followed. Its extension to other matters has consistently led the Court into judicial mistakes on the left and the right of the political spectrum.<\/p>\n<p style=\"font-weight: 400;\">As Rehnquist pointed out in his <em>Roe <\/em>dissent:<\/p>\n<p style=\"font-weight: 400;\">T<strong>o reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. \u2026 By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.<\/strong><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftn17\" name=\"_ftnref17\">[17]<\/a><\/p>\n<p style=\"font-weight: 400;\">When writing these blogs, my intention is always to be fair. In <em>Roe<\/em>, Justice Blackmun was breaking new constitutional ground, and the Court was intoxicated by the success (as it seemed at the time) of <em>Griswold. <\/em>As is often the case, he was also convinced of the righteousness of his cause, which may have led him to underestimate both the decision&#8217;s political impact and the attacks on his legal reasoning that were sure to come.<\/p>\n<p style=\"font-weight: 400;\">In the end, <em>Roe<\/em> represents a continuing problem with the Court in the area of Substantive Due Process: the extension of the 14<sup>th<\/sup> Amendment beyond the Bill of Rights into areas it could not possibly have anticipated and that should not apply without a constitutional amendment authorizing the right the Court wishes to defend. This lack of textual support for the rights being created makes them nearly impossible to defend over time. In addition, it makes the Court an unelected legislature without the legitimacy of having been elected. Americans have become accustomed to using the Court to achieve objectives that might be difficult to attain through Congress or state legislatures. However, abortion and similar issues should be resolved by those best able to weigh public opinion and accountable to the public for their decisions, not by the Courts.<\/p>\n<p style=\"text-align: center;\"><em><strong>Copyright 2026, G. Christopher Scruggs, All Rights Reserved<\/strong><\/em><\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref1\" name=\"_ftn1\">[1]<\/a> <em>Roe v. Wade<\/em>, 410 U.S. 113, (1973), hereinafter \u201cRoe.\u201d<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref2\" name=\"_ftn2\">[2]<\/a> <em>Griswold v. Connecticut,<\/em> 381 U.S. 479 (1965), hereinafter \u201cGriswold.\u201d<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref3\" name=\"_ftn3\">[3]<\/a> I will return to this aspect of the case in the conclusion. <em>Roe <\/em>overturned not only a restrictive law (Texas) but also a law modeled on the ABA model statute.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref4\" name=\"_ftn4\">[4]<\/a> <em>Planned Parenthood of Southeastern Pa. v. Casey,<\/em> 505 U. S. 833 (1992), hereafter \u201cCasey.\u201d While the Court would not overrule <em>Griswold<\/em>, it was obvious that a majority of the Court had come to see Griswold\u2019s logic as flawed.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref5\" name=\"_ftn5\">[5]<\/a> <u>Id<\/u>.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref6\" name=\"_ftn6\">[6]<\/a> <em>Roe v Wade and Supreme Court Abortion Cases: Reproductive Rights in the Untjed States Explained<\/em> <u>The Brennan Center for Justice<\/u>(September 28, 2022) found at <a href=\"https:\/\/www.brennancenter.org\/our-work\/research-reports\/roe-v-wade-and-supreme-court-abortion-cases\">https:\/\/www.brennancenter.org\/our-work\/research-reports\/roe-v-wade-and-supreme-court-abortion-cases<\/a>(downloaded May 13, 2026).<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref7\" name=\"_ftn7\">[7]<\/a> <em>Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women&#8217;s Health Organization, et al.<\/em> , 597 U.S. ___ (2022).<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref8\" name=\"_ftn8\">[8]<\/a> Like <em>Griswold<\/em>, the Court did not fully articulate the ground of its holding, which is on reason <em>Casey<\/em> is important. In <em>Casey<\/em> it embraced the 14<sup>th<\/sup> Amendment as the basis of their decision, abandoning the reasoning of<em> Griswold<\/em>, which by this time had been critiqued from the left and right. In the author\u2019s view, <em>Griswold<\/em> should be overturned.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref9\" name=\"_ftn9\">[9]<\/a> Chemerinsky, Erwin (1999) &#8220;Substantive Due Process,&#8221; Touro Law Review: Vol. 15: No. 4, Article 15. Available at: <a href=\"https:\/\/digitalcommons.tourolaw.edu\/lawreview\/vol15\/iss4\/15\">https:\/\/digitalcommons.tourolaw.edu\/lawreview\/vol15\/iss4\/15<\/a> (downloaded May 13, 2026), at 1501. In my view, the source of Roe\u2019s incoherence is to be found in the faulty logic of <em>Griswold<\/em>.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref10\" name=\"_ftn10\">[10]<\/a> Justice Rehnquist dissenting. \u201cTo reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.\u201d <em>Roe<\/em>, 174.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref11\" name=\"_ftn11\">[11]<\/a> <em>Dobbs<\/em>, at B1. I am quoting this at length, but I do not intend to discuss Dobbs per se in this blog. It awaits a future blog.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref12\" name=\"_ftn12\">[12]<\/a> Nan D. Hunter, <em>Justice Blackmun, Abortion and the Myth of Medical Independence, <\/em>72 Brook. L. Rev. (2006). Available at: <a href=\"https:\/\/brooklynworks.brooklaw.edu\/blr\/vol72\/iss1\/6\">https:\/\/brooklynworks.brooklaw.edu\/blr\/vol72\/iss1\/6<\/a> (downloaded May 14, 2026).<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref13\" name=\"_ftn13\">[13]<\/a> Gregory C. Sisk, <em>Willful Judging of Harry Blackmun<\/em>, The, 70 MO. L. REV. (2005) Available at: https:\/\/scholarship.law.missouri.edu\/mlr\/vol70\/iss4\/6<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref14\" name=\"_ftn14\">[14]<\/a> See <em>Roe, <\/em>at 164-65 Daniel A Farber, <em>Did Roe v Wade Pass the Arbitrary and Capricious Test<\/em> 70 Missouri Law View, 4 (2005), 1253.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref15\" name=\"_ftn15\">[15]<\/a> F. K. Beller &amp; C.A. deProsse, <em>Confusion of Trimester and Viability: Consequences for Abortion Laws in the United States and Abroad <\/em>37 Journal of Reproductive Medicine 6 (1992), 537-40.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref16\" name=\"_ftn16\">[16]<\/a> See note 1 above.<\/p>\n<p><a href=\"applewebdata:\/\/3CDB376D-E036-4713-BA4B-6534679CA566#_ftnref17\" name=\"_ftn17\">[17]<\/a> <em>Roe,<\/em> at 174-175.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Roe v. Wade, perhaps the most debated and in some quarters, vilified Supreme Court opinion of the 20th century, arose from appeals in Texas and Georgia challenging their state abortion laws.[1] In Roe, the Court recognized (or created) a right to abortion, building on its earlier decision in Griswold v. Connecticut.[2] The majority opinion, written &hellip; <a href=\"https:\/\/gchristopherscruggs.com\/?p=4419\" class=\"more-link\">Continue reading <span class=\"screen-reader-text\">The Ambivalent Legacy of Roe v. Wade<\/span> <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[1],"tags":[],"class_list":["post-4419","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p4CzBH-19h","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4419","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4419"}],"version-history":[{"count":2,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4419\/revisions"}],"predecessor-version":[{"id":4421,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=\/wp\/v2\/posts\/4419\/revisions\/4421"}],"wp:attachment":[{"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4419"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4419"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/gchristopherscruggs.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4419"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}