Forget Roe: A surer legal path to protect abortion as a right

Saturday marks one year since the Supreme Court overturned Roe v. Wade with its Dobbs v. Jackson decision.

At that time, Professor Akhil Amar of Yale Law School, with unimpeachable liberal bona fides, wrote eloquently to suggest that Roe had been a poorly-reasoned decision. That view is nothing new. Long before Dobbs, it had been endorsed by countless thinkers at the very top of the legal profession, including even the late Justice Ruth Bader Ginsburg.

But at least when Roe was on the books, the right to abortion was protected. Today, that right is imperiled, which is why federal courts considering post-Dobbs challenges to new state abortion regulations desperately need what Roe failed to provide: identification of a constitutionally-rooted, super-protected right to terminate a pregnancy.

And there’s no need to invent this wheel. The job was done four months before Roe was handed down, through another decision by an inferior court with a superior and prescient grasp of the issues at stake, including how those issues fit into preexisting Supreme Court formulations.

Roe was decided in January 1973. Months later, the venerable John Hart Ely published “The Wages of Crying Wolf: A Comment on Roe v. Wade.” No one has since better articulated the shortcomings of Roe, and in three brief sentences no less.

“[Roe is] a very bad decision,” Ely wrote. “Not because it will perceptibly weaken the Court — it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s — it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

Ely’s assertion requires little extrapolation. The Constitution says nothing about abortion and it is therefore no stretch to state that the framers of that document likely didn’t craft it for the purpose of protecting a right to abortion. Nor is it a stretch to state that protection of that right is not overtly inferable from the text of that document. 

Roe ignores these textual realities; it fails to so much as address them, except to conclude, vaguely, that abortion rights are subsumed under the Fourteenth Amendment. That is not law or its interpretation or application; it is rather the blanket announcement of a super-protected right without strong justification in constitutional text or theory. In this sense, the right Roe announces is weak.

Super-protection requires a strong Constitutional basis, lest the right to abortion become what Roe made it: a weakly-protected right subject to the shifting views of nine un-elected but politically-appointed lawyers. 

But there is a way toward unassailably enshrining a super-protected woman’s right to choose within our system of laws. It’s much simpler than what Roe espoused and far less susceptible to political wrangling.

Abele v. Markle challenged an 1860 Connecticut law that prohibited not only all abortions, but also providing advice or aid for getting an abortion unless necessary to preserve the life of the mother. The case had two iterations, presided over by an atypical three-judge panel that included the recently appointed Judge Jon O. Newman.

In Abele I, Newman found that the 1860 statute, which predated antiseptic surgery, likely wasn’t concerned with protecting the life of a fetus but rather the life of the mother at a time when childbirth itself was just as dangerous as having an abortion.

Newman thereby sidestepped the critical question of whether a law designed to protect an unborn child could be held constitutional. But just weeks later, the Connecticut legislature made clear in special session that “[t]he public policy of the state and the intent of the legislature [in formulating the law] is to protect and preserve human life from the moment of conception.”

Then came Abele II. The issue could no longer be avoided. Several lines from Newman’s Abele II opinion are quoted in Justice Potter Stewart’s Roe concurring opinion, and in fact Sarah Weddington, counsel for Roe, raised the opinion at oral argument. The majority should have paid closer attention to it, because its precision better protects the general principle underlying a right to choose abortion than anything in Roe.

Newman found simply that the Supreme Court had ruled clearly that the state “cannot enter” the “private realm of family life” and that, therefore, “the existence of a woman’s constitutional right to such privacy has been set forth by the Supreme Court.” Newman also found that, “based on the text and history of the Constitution and on cases interpreting it, [we conclude] that a fetus is not a person within the meaning of the fourteenth amendment.” 

Taken together, these propositions led Newman to the reasonable conclusion that no government interest asserted on behalf of a fetus could possibly be expressed through law in a way that completely undermines family privacy rights enjoyed by extant individuals and granted by the Constitution.

There are of course problems with such a straightforward formulation. It does not, for example, account for the evolving question of fetal viability vis-à-vis notions of personhood and protection under the Fourteenth Amendment. Whether the viability concept should ever have been brought into our jurisprudence is a question itself, but that ship has sailed.

What Dobbs does, however, in displacing Roe, is empower state legislatures to more closely regulate and even prohibit abortion altogether, separate and aside from any viability framework. The fight, then, to super-protect abortion rights thus begins anew. That fight should be guided by a constitutionally-rooted proposition that the right to choose abortion is a matter of family privacy and therefore presumptively not susceptible to abridgement.

Abele II isn’t perfect, but it’s better than Roe. And with Roe gone and challenges to new state laws regulating and even prohibiting abortion set to arise in droves, the challengers should forget about Roe and look instead to Abele II.

Alex Talel is an attorney in private practice at an international law firm. He served as a law clerk to Judge Jon O. Newman of the U.S. Court of Appeals for the 2nd Circuit and to Judge Sidney H. Stein of the U.S. District Court for the Southern District of New York.