Student Request on Roe Scholarship
A college student has asked for a recommendation of law review articles and books dealing with the Roe and its unconstitutional nature. I, of course, suggested Ely’s 1973 Yale law review article, but wanted some additional suggestions from SA readers. Please use the comments and give full cites when possible.
November 30th, 2006 at 6:52 pm
two good recent publications that I have heard of:
I actually havent read it, but Balkin’s book is on my to read list. It has several new justifications for the holding (but not the reasoning) of Roe. It also supposedly has two conservative critiques. What Roe v. Wade Should Have Said (Jack Balkin ed., 2005).
A. Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J.L. & Pub. Pol’y 1035 (2006)
November 30th, 2006 at 7:38 pm
Don’t forget to recommend the Planned Parenthood v. Casey dissent (since he isn’t a law student and may not have it in front of him).
November 30th, 2006 at 7:55 pm
There’s Hunter Baker’s article in Regent University Law Review, Storming the Gates of a Massive Cultural Investment. Don’t have the rest of the cite handy, but that’ll get ‘er done on Lexis or Westlaw.
December 1st, 2006 at 8:21 am
Joseph W. Dellapenna. Dispelling the Myths of Abortion History. Durham, North Carolina, Carolina Academic Press, 2006. xvi, 1283 pp. $95.00.
Villanova Law Professor, Joseph W. Dellapenna, has integrated decades of research and writing on the history of abortion in this huge volume. One is hard pressed to find any aspects of abortion and abortion laws that are not extensively covered.
Dellapenna describes how Justice Blackmun based his arguments in Roe v. Wade largely on Cyril Means’ erroneous claims
December 1st, 2006 at 9:14 am
To refute the incorrect history incorporated into Roe v. Wade, and repeated in several other cases, check out a recent law review article in Issues in Law and Medicine by John Keown, “Back to the Future”. It appeared within the last month or two. It’s a bit more manageable than the magisterial Dellapena book, and directly addresses the misuse of history in Roe and later cases.
Also, there’s a nice overview chapter called “Roe v. Wade, No Basis in Law, Logic or History by Dennis Horan and Thomas Balch. It is reprinted in the book “Abortion and the Law”, Georgetown Univ. Press 1987 and also in a book of essays called “The Abortion Controversy: 25 Years After Roe v. Wade”. You can find the latter book on Amazon. This book is pricey, but has good articles on all sides - perhaps a library will have it.
December 1st, 2006 at 2:19 pm
My favorite article on Roe is surely John T. Noonan, Jr., The Root and Branch of Roe v. Wade, 63 Neb. L. Rev. 668, 668 (1984). It is very good, and I don’t think it is widely known. Should be, though.
I would also recommend Professor Paulsen’s The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995 (2003). Its subject is Casey, rather than Roe, but is a good discussion of the abortion jurisprudence house of cards nonetheless.
Finally, it won’t hurt to read Professor Ely’s The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE LJ. 920 (1973). I see that it can be found online at http://www.timothypcarney.com/wages-wolf.htm
December 2nd, 2006 at 11:15 am
The Supreme Court’s rationale for its abortion decisions was so poor that “what seemed to make sense as a matter of principle to a lot of people and a lot of lawyers is all of a sudden suspect.” Richard A. Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 Sup. Ct. Rev. 159, 179.
“One is left to ask why. The Court never said. It refused the discipline to which its function is properly subject. It simply asserted the result it reached.” Alexander M. Bickel, The Morality of Consent 28 (1975).
“My criticism of Roe v. Wade is that the Court failed to establish the legitimacy of the decision by not articulating a precept of sufficient abstractness to lift the ruling above the level of a political judgment.” Archibald Cox, The Role of the Supreme Court in American Government 113 (1976).
“Most academic commentators probably believe that, as a matter of sound public policy, access to abortions should be relatively unrestricted. But none has been able to provide conclusive arguments that the Supreme Court correctly found that policy in the Constitution.” Tushnet, The Supreme Court on Abortion: A Survey, in ABORTION, MEDICINE, AND THE LAW 165 (J. Butler & D. Walbert eds.) (3rd ed. 1986).
“Roe is widely acknowledged in elite circles to be a terrible opinion, and in some sense, that is certainly true. All the best young constitutional scholars of their time cut their teeth outdoing each other in the creativity and severity of their condemnations.” Susan Estrich, Politics and the Limits of Law: A Musing for Dean Sullivan, 90 Calif. L. Rev. 813, 814 (2002).
“Sadly, the court failed to relate the body of long-emerging precedent it recognized as significant . . . to those articulable, widely shared principles that the precedents reflect. . . . This failure leaves the impression that the abortion decisions rest in part on unexplained precedents, in part on an extremely tenuous relation to provisions of the Bill of Rights, and in part on a raw exercise of judicial fiat.” Heymann & Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53 B.U.L. REV. 765, 784 (1973).
“[I]t is difficult to find a case that raises methodological problems as severe as those left in the wake of Roe.” Perry, Abortion, the Public Morals, and the Police Power: The Ethical Function of Substantive Due Process, 23 UCLA L. REV. 689, 690 (1976).
“The result in the case . . . was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court’s opinion. Others before me have attempted to explain how a better opinion could have been written.” Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1569 (1979).
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 7 (1973).
“Unfortunately, the decisions themselves fail to yield a reasonable justification of the constitutional basis for protection of the woman’s interest in terminating her pregnancy.” Wheeler & Kovar, Roe v. Wade; The Right to Privacy Revisited, 21 U. KAN. L. REV. 527, 527 (1973).