Roe v. Wade was decided on the basis of legal sophistry
We write not to praise Anthony Kennedy's jurisprudence, but to bury it.Penumbra is defined as a shadowy area at the margins. The reasoning is specious. It was a way to get to the results some wanted without citing specific language to support it. If it is repealed states will decide whether abortion with be permitted within their area. Blue states will probably keep it and red states will probably be more restrictive in allowing it.
Across 31 years, Justice Kennedy issued many rulings, good and bad. But his most lasting legacy was the travesty he released 26 years ago today, Planned Parenthood v. Casey. With airy, mystical reasoning, unrooted in the Constitution, the common law, or the natural law, he talked himself into saving a precedent that was indefensible legally, scientifically, and morally.
In saving Roe v. Wade in 1992, Kennedy did violence to the rule of law, and undermined the court's legitimacy and added extra poison to our politics. Casey helped transform national politics into a winner-take-all partisan death match that, over a decade, saw both parties destroy the rules of the Senate. That's before mentioning that Casey condemned tens of millions of babies to death in the womb.
Politicians are already saying in so many words that replacing Kennedy is, more than anything else, about saving or scrapping Roe and Casey.
Most news media will portray Roe as a venerable precedent, but an honest discussion of these cases should begin with an admission of the near-universal judgment among legal scholars, not just those who oppose abortion, that Roe v. Wade was a jurisprudential embarrassment.
Abortion is very obviously not protected by the Constitution. The protection of the innocent from violence is a legitimate role for state governments. So, how did the Roe court find that states couldn’t protect the unborn from abortion?
It found a “right to privacy” “emanating” from the Bill of Rights, and that emanation cast a “penumbra” in which the court spotted a fundamental right to abort an unborn baby up to the moment of birth. The ruling held that, in effect, states may not make laws to protect the unborn baby until the seventh month of pregnancy. Even in the final trimester, the court ordered states to grant a broad “health of the mother” exception to any restrictions on abortion.
Plenty of legal scholars who support abortion rights nevertheless admit that the ruling was garbage. “[B]ehind its own verbal smokescreen,” liberal legal scholar Laurence Tribe wrote, “the substantive judgment on which it rests is nowhere to be found.”