The Supreme Court, Roe v. Wade, and Abortion Law

Tomorrow is the 38th anniversary of Roe v. Wade.
To understand the ruling and subsequent decisions in detail, there is probably no better resource than Francis Beckwith’s article, “The Supreme Court, Roe v. Wade, and Abortion Law,” Liberty University Law Review 1.1 (2006): 37-72, available online.
Here is the introduction:

It is no exaggeration to say that no U.S. Supreme Court opinion has been more misunderstood and has had its arguments more misrepresented in the public square than Roe v. Wade (1973). There seems to be a widespread perception that Roe was a moderate opinion that does not support abortion on demand, i.e., unrestricted abortion for all nine months for virtually any reason. Even a philosopher of such erudity as Mortimer Adler did not seem to fully understand the legal implications of Roe: “Mr. Justice Blackmun’s decision in the case of Roe v. Wade invokes the right of privacy, which is nothing but the freedom of an adult woman to do as she pleases with her own body in the first trimester of pregnancy.”
In order to fully grasp the reasoning of Roe, its paucity as a piece of constitutional jurisprudence, and the current state of abortion law, this article looks at three different but interrelated topics: (1) what the Court actually concluded in Roe; (2) the Court’s reasoning in Roe; and (3) how subsequent Court opinions, including Casey v. Planned Parenthood, have shaped the jurisprudence of abortion law.

And here is the conclusion:

The Supreme Court currently affirms a woman’s right to abortion with virtually no restrictions prior to fetal viability. After viability, it only allows states to make restrictions prior to viability that do not entail an undue burden. However, given the wideness of the Supreme Court’s “health exception,” a state’s ability to restrict post-viability abortions is questionable, especially given the Court’s Stenberg opinion and Roe’s pre-Casey progeny. Thus, according to the current legal regime in the United States, the unborn is not protected by the U.S. Constitution from death-by-abortion at any stage in her nine-month gestation.

Justin Taylor