Liberals are critical of Roe too!

After recently mentioning that even some liberals see Roe as wrongly decided, a reader seemed skeptical and asked for names. Well, here are some names:

Here are typical criticisms of Roe—from liberals who support a right to abortion:

"What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking." John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 935-937 (1973).

"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." Laurence H. Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 7 (1973).

"As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible." "Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms." Edward Lazarus, The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them, Oct. 3, 2002 (at http://writ.corporate.findlaw.com/lazarus/20021003.html). (Mr. Lazarus was a law clerk to Blackmun and describes himself as "someone utterly committed to the right to choose [abortion]" and as "someone who loved Roe’s author like a grandfather.")

"[Roe’s] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution." Archibald Cox, The Role of the Supreme Court in American Government 113-114 (1976).

"Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference." William Saletan, Unbecoming Justice Blackmun, Legal Affairs, May/June 2005 (at http://www.legalaffairs.org/issues/May-June-2005/feature_saleton_mayjun05.msp).

Roe "is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply." Benjamin Wittes, Letting Go of Roe, The Atlantic Monthly, Jan/Feb 2005.

(From Ed Whelan's Senate Testimony on Roe v. Wade.)