Roe v. Wade: A Scandal Upon the Court.

• Author: Rafferty, Philip A.
• Position: Abstracts

7 RUTGERS J. L. & RELIGION 1 (2005).

Abortion achieved the status of a fundamental right through the most poorly reasoned opinion in the history of English or American law. In other words, abortion achieved the status of a fundamental, constitutional right only because the Roe Court made a complete mockery of the rules of constitutional interpretation. The Roe opinion confirms the saying that "bias is impervious to reason." As Jon Franklin observed: "People do things for reasons ... and people give reasons for the things they do. But the reasons they do them and the reasons they give frequently are not the same."

The Court in Lawrence v. Texas, in the course of overruling its no-fundamental-right-to-engage-in-homosexual-sodomy case of Bowers v. Hardwick, observed: "criticism of Bowers has been substantial, and continuing, disapproving of its reasoning in all respects, not just its historical assumptions." Compared to the "unanimous" and "universal" criticism directed at the Roe opinion, the criticism directed at the Lawrence opinion is less than minuscule. And, of course, the only reason why the Roe Court cannot be accused of "intentionally" misrepresenting the history of the status of the fetus and abortion in English common law is because judicial bias cannot be ruled out here. Yet, notwithstanding having repeated opportunities here, the Court has never acknowledged that the Roe opinion has been universally condemned.

The Roe opinion began the ruination of constitutional law. If this is doubted, then consider the following: First, Roe made "fundamental rights analysis" and "compelling interest analysis"...