Getting Beyond Roe

Why returning abortion to the states is a good idea

By Radley Balko
Reason Magazine

In 1985 a prominent liberal legal figure argued that Roe v. Wade, the Supreme Court decision that established a constitutional right to an abortion, was a “heavy-handed judicial intervention” that “was difficult to justify and appears to have provoked, not resolved, conflict.” The writer was Ruth Bader Ginsburg, now an associate justice on the U.S. Supreme Court—and also now a strong supporter of Roe.

Ginsburg isn’t the only backer of abortion rights to have taken issue with the 1973 decision. In 1995, for example, the University of Chicago’s Cass Sunstein, a superstar among liberal law professors, wrote in the Harvard Law Review that the high court “should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.” Roe, he argued, centralized an issue centered around privacy, reproduction, and medical ethics, all matters that traditionally have been the province of the states. Moving those moral debates to Washington forced a one-size-fits-all policy on the entire country, raising the stakes, and therefore the contentiousness, of an already divisive issue.