The pro-choice scholars who called Roe bad law long before Dobbs

When the Supreme Court decided Dobbs in June 2022, a certain story went out within the hour. The story said that a radical Court, packed by one party, had torn up a settled right on a political whim, for the first time in memory dismantling a decision that every serious lawyer respected. It was a good story. It had a villain and a victim and an ending. The only problem is that it asks you to forget about forty-nine years of scholarship written by people who were on the other side of the abortion debate.

Here is what I would like you to know, and to say at the next dinner where someone tells you that criticizing Roe v. Wade as a legal decision is an extremist position. Some of the sharpest criticism of Roe came from liberal law professors, from a future Justice who became an icon of the left, and from a clerk who worked inside the Court on the case. They did not write to attack abortion rights. Many of them wanted abortion to be legal. They wrote because they thought the decision was badly built. That distinction, between liking an outcome and defending an opinion, is the one the political version of this story erases.

What Roe held

Let me set the stage so we are all looking at the same decision. Roe v. Wade came down on January 22, 1973, by a vote of 7 to 2, with Justice Harry Blackmun writing. It struck down a Texas statute that banned abortion except to save the mother's life. The opinion located a right to abortion in the Fourteenth Amendment's concept of personal liberty, which it linked to a line of earlier privacy cases such as Griswold v. Connecticut (1965).

Then the opinion did something unusual for a court. It laid out a framework in three stages, usually called the trimester framework. In the first stage, the abortion decision was left to the woman and her doctor. In the second, a state could regulate to protect the mother's health. In the third, after viability, a state could prohibit abortion except where necessary to preserve the life or health of the mother. If that sounds like a statute, that is because it reads like one. Remember that, because it comes back.

1973: John Hart Ely

The most famous early critique came within months. John Hart Ely, a professor at Yale who had clerked for Chief Justice Earl Warren and who was firmly on the liberal side of constitutional law, published an article in the Yale Law Journal in 1973 titled "The Wages of Crying Wolf: A Comment on Roe v. Wade." The title tells you something. Ely's point was that the decision cried wolf: it treated a policy choice as though it were required by the Constitution.

His argument was about method, not about abortion. He said the opinion did not tell the reader where in the Constitution the right came from, and that the right it announced could not be inferred from the language of the Constitution, from what the framers had in mind, or from the structure of the government. What worried him was the way the Court had decided it. He said the decision was bad because it was not really constitutional law at all, and because it showed little sense of an obligation to try to be. Ely wanted courts to protect the democratic process and the rights of people shut out of it. He did not think this was that.

You may disagree with Ely, but notice who he was. He was not a conservative looking for a way to ban abortion. He was a liberal professor who thought the Court had skipped the hard part of its job.

Others joined him that same year. Laurence Tribe, a leading liberal constitutional scholar at Harvard, wrote in the Harvard Law Review that behind its verbal smokescreen, the substantive judgment on which the opinion rested was nowhere to be found. Archibald Cox, the Harvard professor who would soon become famous as the Watergate special prosecutor, later wrote that the opinion failed to ground the right in principle and that its authority was weakened for that reason. These were not outsiders; they were pillars of the liberal legal establishment.

1985: Ruth Bader Ginsburg

The most striking critic is the one the political story forgets. Before she was a Justice, Ruth Bader Ginsburg was a federal appeals judge and, before that, the lead litigator for the ACLU's Women's Rights Project. She spent her career arguing for sex equality. In 1984 she gave a lecture at the University of North Carolina, published the next year in the North Carolina Law Review as "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade."

She said two things. First, she thought the right should have been grounded differently. Instead of a privacy right resting on due process, she would have rested the case on equal protection, on the principle that a law forcing women to carry pregnancies to term denies them equal treatment as citizens. Second, she argued that the Court had moved too far, too fast. In her view, the decision halted a political process that was moving in a reform direction and thereby prolonged divisiveness and deferred stable settlement of the issue.

Think about what that means. At the time of Roe, a number of states had been changing their abortion laws through the legislature. New York, Hawaii, Alaska and Washington had moved by 1970, and other states had adopted reform statutes. Ginsburg's argument was that a narrower decision, one that struck down the extreme Texas law and left the rest to develop, would have produced a more stable settlement and less bitterness. She repeated versions of this view later in her career, including in remarks at the University of Chicago Law School in 2013.

She was not neutral on the result. She supported abortion rights all her life. But she thought the way Roe was done was a mistake, and she said so for decades. If a Justice beloved by the left can say a decision moved too far too fast, it is hard to argue that the same concern is a right-wing talking point.

The trimester framework and the problem of legislating

Now go back to the three stages, because here is where a number of critics from different camps agreed. A court that finds a constitutional right can decide whether a given law violates it. What it is much less able to do is say, with a level of precision, how much regulation is acceptable at which stage of pregnancy. The trimester framework did that. It divided pregnancy into three periods and gave each a different legal rule.

Critics, including some who supported legal abortion, said that was a job for legislators. A legislature can hold hearings, hear from doctors and families, adjust as circumstances change, and be voted out if it gets it wrong. A court that writes a detailed code into the Constitution leaves no room to adjust, and no one to hold accountable. The framework also put the justices in the position of tying a constitutional line to medical and technological facts that kept changing, and it was dropped by the Court itself in 1992.

I want to be careful here. I am not making a medical claim, and the point stands without one: whatever you think of the policy, a nine-member court drafting a three-stage code was acting like a legislature, and that was Ely's complaint and Ginsburg's.

1992: Casey and the undue-burden standard

In 1992 the Court got another chance. In Planned Parenthood of Southeastern Pennsylvania v. Casey, decided June 29, a joint opinion by Justices O'Connor, Kennedy and Souter reaffirmed what it called the essential holding of Roe, kept viability as the key line, and threw out the trimester framework. In its place it adopted an "undue burden" test: a state may regulate abortion before viability so long as the regulation does not place a substantial obstacle in the path of a woman seeking one.

You can read this as a fix, and it is notable that a joint opinion of three Justices appointed by Republican presidents is what saved the core of Roe. The justices relied heavily on stare decisis, the principle of respecting past decisions. But note what happened. The Court itself had replaced the central structure of Roe with a different one. Critics noted that the new standard was vague, that it left lower courts guessing, and that the Court had not answered Ely's question about where the right came from. The joint opinion did explain that the right came from the liberty protected by the Due Process Clause, but the debate about whether that clause protects this kind of right stayed open.

The problem of finding the right in the Fourteenth Amendment

That is the crux, and it is the heart of what the early critics were getting at. The Fourteenth Amendment says no state shall deprive a person of life, liberty or property without due process of law. The Court has long held that the clause protects some rights that are not listed elsewhere, but only if they meet a standard. In Washington v. Glucksberg (1997), the Court said such a right must be deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty.

Apply that test to abortion and you can see the difficulty that the scholars noticed in the 1970s. Abortion was widely restricted by the states when the Fourteenth Amendment was ratified in 1868, and most states had restrictions in 1973. That does not settle the moral question. It does mean that the argument for the right could not rest on the history that the test requires. Ginsburg's solution was to move to a different clause, equal protection, which asks a different question. Whether that works is debated, but notice that even the leading defender of abortion rights thought the due process route was a poor one.

An honest ally of Roe might say that history is not the only source of rights, that courts have found rights in changing understandings of liberty, and that the Constitution is not frozen in 1868. That is a serious position, and it is the position of the dissenters in Dobbs. If you want to see how the debate over reading the Constitution plays out generally, Originalism Explained for People Who Skipped Law School and The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It state the two sides.

A clerk's confession

One more witness. Edward Lazarus clerked for Justice Blackmun, the author of Roe, in the 1988 term, and later wrote a book about the Court called Closed Chambers. In a widely read essay years afterward, he wrote that as someone who supported abortion rights, he thought Roe was a very bad decision, one he found hard to defend as a matter of constitutional interpretation, and that its weak reasoning left the right on shakier ground than it needed to be. Take that for what it is: one person's view, expressed from inside the building. But it adds to the pattern.

Does this prove Dobbs was right?

No, and I want to be straight about that. The fact that scholars criticized Roe does not make Dobbs correct, and a conservative should not claim more than the evidence gives. Here is the strongest reply from the other side, followed by my answer.

The reply. Those critics wanted a better foundation for the right, not no right at all. Ginsburg wanted equal protection, and she supported abortion rights all her life. Ely said the decision was bad law, but he never said the states should be free to ban abortion. And overruling a decision after nearly fifty years, with generations having organized their lives around it, is a different thing from criticizing its reasoning.

The answer.

1. That is fair, and I won't pretend those scholars wanted Dobbs. Most did not.
2. But the question in Dobbs was whether the right the Court announced in 1973 is actually in the Constitution. The critics' complaint was that it was not clearly there, and that the opinion did not show it. The majority in Dobbs said the same thing, and called Roe egregiously wrong from the start. When a court agrees with the scholars who attacked a decision, saying "those scholars would have wanted something different" does not answer the point about the reasoning.
3. The reliance argument is the strongest, and the Court took it up. The Dobbs majority concluded that the kind of reliance that counts, like property and contract expectations, was not present here. People can and do disagree about that, and the opinion's critics have made the case against it.
4. The deeper question is who decides. If the scholars are right that the Constitution does not clearly answer the abortion question, then the answer is not "nobody decides." It is that voters and their legislatures decide, which is what the Ginsburg of 1985 worried the Court had cut short.

What to say at dinner

You will hear that opposing Roe as law is a fringe view. Say this instead: "Ely, Tribe, Cox and Ginsburg all criticized the opinion. Some of them were pro-choice. Their complaint was about the reasoning." That is accurate, and it is hard to answer. You can add that the dispute is about the Constitution and not about whether abortion is good or bad, which is why a person can think Roe was bad law and still hold any view at all on the policy.

If you want the full account of what the 2022 decision did, What the Dobbs decision actually decided, step by step and in plain English goes through it step by step. For how abortion law now varies across the country, see why abortion law differs from state to state, mechanism by mechanism. And for the case that the premise behind the whole debate deserves an argument of its own, see the pro-life argument in four premises and where each one gets attacked. A broader guide to the Court is How to Read a Supreme Court Opinion Without a Law Degree, and if you wonder why the Court has the last word at all, read Marbury v. Madison and the Power the Supreme Court Gave Itself in 1803.

The bottom line

• Criticism of Roe as constitutional reasoning began in 1973 and came from liberals. John Hart Ely, Laurence Tribe and Archibald Cox found fault with the opinion, and Ruth Bader Ginsburg argued in 1985 that it moved too far, too fast and should have rested on equal protection.
• That history does not prove Dobbs right, but it does show that the claim that attacking Roe is a political coup is wrong. The dispute over its foundation is old and bipartisan.
• Separate the two questions. Whether abortion should be legal is a question for voters and legislatures. Whether the Constitution answers it is a legal question, and you can answer it without taking a side on the first.
• Read the sources yourself. Ely's article is in volume 82 of the Yale Law Journal, Ginsburg's lecture is in volume 63 of the North Carolina Law Review, and the opinions in Roe, Casey and Dobbs are free on the Supreme Court's website.
• Argue with respect. Plenty of people who share your reading of the law do not share your view of the policy, and the conversation goes better when you let them keep both.