Now that Roe v. Wade is gone, what should replace it? This moment presents a rare opportunity to re-imagine the right to reproductive autonomy, given that the longstanding constitutional framework governing that right has been tossed out the window. For the most part, constitutional litigation over the right to abortion has shifted to state courts and is brought under state constitutions. Thus, as state courts begin to recognize the existence of a constitutional right to reproductive autonomy under state constitutions, they must decide what the right looks like. In several cases currently being litigated in state courts, advocates have argued for a fundamental right to terminate a pregnancy, urging courts to adopt a strict scrutiny standard. A fundamental right to abortion, protected by strict scrutiny, of course looks very much like the rule adopted by Roe.
In light of this potential resurgence of a Roe-like standard in the state courts, it makes sense to ask whether Roe’s doctrinal framework is worth resurrecting. To be sure, Roe came under heavy criticism by the Supreme Court in Dobbs. But not only conservatives have bashed Roe over the years: one of Roe’s most prominent critics is a liberal intellectual, the legal scholar John Hart Ely, who famously attacked Roe’s reasoning in a much-cited essay entitled The Wages of Crying Wolf: A Comment on Roe v. Wade. Justice Alito’s majority opinion in Dobbs gleefully cited Ely’s criticisms, as if to suggest that Roe simply must be wrong, since even such a prominent liberal has found it lacking.
This essay gives a brief overview of the Dobbs Court’s use of Ely’s famous article and discusses Ely’s critique in more detail. It then considers whether Roe, as an example of constitutional doctrine, really merits such harsh criticism.
abortion, reproductive rights, substantive due process, Fourteenth Amendment, Roe v. Wad
14 ConLawNOW 65 (2022)
Hill, B. Jessie, "Big Bad Roe" (2022). Faculty Publications. 2190.