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William McGurn’s “What Pro-Lifers Want” (Main Street, Nov. 30) sparks memories of law school in 1974 when a professor led an animated discussion about Roe v. Wade (1973). He started with Justice William Douglas’s 1965 opinion in Griswold v. Connecticut that “penumbras emanating” from the Constitution created a zone of privacy. This zone morphed into constitutional protections for a woman’s decision to end her pregnancy.
Our professor brushed aside questions about the morality of abortion. His concern was the Supreme Court’s credibility and stature. He saw that mischief would ensue from conferring rights and protections grounded not in the Constitution but in shadows, mists and vapors. The past five decades have proved his point. Our court must now decide whether or how to overturn an entrenched string of constitutionally unmoored decisions.
The Griswold and Roe detours into penumbras and emanations leave abortion advocates with only vaporous arguments to defend them. The U.S. solicitor general argues that overturning Roe is not the right answer because abortion is “a fundamental right”—which begs the question. Justice
Elena Kagan
says abortion rights are woven into “the fabric of women’s existence in this country”—simply substituting “fabric” for “penumbra.” Finally, Justice
Sonia Sotomayor
adopts the thinnest of rhetorical tactics, accusing her colleagues in advance of the “stench” of politics, while showing herself to be the prime political actor in the room.
Mark Van Brussel
Poway, Calif.
I was struck during oral argument by a misunderstanding of one word: politics (“Sotomayor Gets Political,” Review & Outlook, Dec. 2). To touch Roe would amount to an act of politics, suggested three justices in particular. That is entirely backward. The political sin occurred in 1973, when the court found a near-absolute right to abortion. Legal scholars on the left know it, too. As
John Hart Ely
said of Roe: “It is not constitutional law and gives almost no sense of an obligation to try to be.”
For the court to return that issue to the people would be a way of extricating itself from abortion politics. By relinquishing its hold on a question to which it has no business answering, the court would be restoring its place in our constitutional order.
Nick Tomaino
National Review
Arlington, Va.
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Appeared in the December 10, 2021, print edition as ‘Abortion and the Return to the Constitution.’
