A constitutional law expert explains why these pervasive right-wing myths about Roe v. Wade are complete nonsense
Supreme Court nominee Brett Kavanaugh during his testimony. (Screenshot)

With two of President Donald Trump’s nominees secure on the Supreme Court, the conservative movement is seizing its perceived opportunity and maneuvering to overturn Roe v. Wade.

Conservatives have loathed the decision for decades, and taking it down has become one of the biggest political motivations for right-wing voters. But since it was decided in 1973, the ruling has morphed into something much more than just a precedent that conservatives object to. It has become a symbol of what they hate about American liberalism, politically progressive views of the court, and the supposedly overreaching power of the federal government.

But in the course of years of fulmination among right-wing activists, academic circles, in the public square of ideas about the judiciary, conservative myths have built up around the decision that are increasingly disconnected from reality. The most prominent and influential of those myths, as law professor Eric Segall of Georgia State University explained to me, is the idea that the methodology of constitutional interpretation displayed in Roe was somehow an outlier in the court’s history.

John Hart Ely, who happened to be a liberal constitution scholar, summed up this view of Roe in an early law review article that has since been widely cited by conservatives. It argued not that the ruling itself was an incorrect application of constitutional law, but that the decision “is not constitutional law” at all and that it “gives almost no sense of an obligation to try to be.”

Some of the law’s most prominent critics — Judge Robert Bork, Attorney General Edwin Meese under Ronald Reagan, and the late Justice Antonin Scalia — would endlessly cite Ely’s claim that about Roe, Segall explained, emphasizing the idea that it was an extreme outlier.

“And it’s all wrong,” Segall told me. “I mean, It’s all wrong. Roe may be right or it may be wrong, but it’s not an outlier — in any way, shape or form.”

The problem, according to many conservative opponents of the ruling, is that Roe found that there is a fundamental right to get an abortion that was nowhere in the Constitution. It based this finding on a prior case, Griswold v. Connecticut, which struck down a ban on contraception by finding that the Constitution protected a right to marital privacy. This isn’t explicitly mentioned in the text, but Justice William Douglas said that it could be interpreted from the “penumbras” and “emanations” of the Constitution. Roe then extended this principle to cover the right to an abortion. (Segall noted that it’s often forgotten that Roe garnered a 7-2 vote by the court, a more decisive majority than many controversial cases today.)

This is the method of constitutional interpretation that conservative jurists say they despise, because it supposedly conflicts with the “originalist” view of the law, a term that actually encompasses a variety of legal views.

But Segall argued that this explanation is nonsense. Despite their supposed devotion to the text of the Constitution, conservative justices and proponents of originalism decide cases often without regard to a lack of textual support.

Segall pointed to a recent ruling authored this month by Justice Thomas, perhaps the court’s staunchest conservative. In Franchise Tax Board v. Hyatt,  the court found that the Constitution does not permit a state to be sued by an entity in another state’s court system. This overturned decades of precedent, even though Thomas — who says he is a devout originalist — admitted that there was no textual basis for his decision.

“Many constitutional doctrines not spelled out in the Constitution are nevertheless implicit in its structure and supported by historical practice,” Thomas wrote. In other words, his ruling was based on the “penumbras” and “emanations” from the Constitution.

The principle Thomas relied on for the ruling, Segall said,  “was made up — just like Roe was made up. Just like all of constitutional law is made up. So anyone who says that Roe isn’t constitutional law — doesn’t understand constitutional law.”

Many other fundamental principles that conservatives and liberals alike take for granted are likewise not spelled out in the text, Segall argued — like the idea of “one person, one vote.” That’s not an argument for abandoning this principle, of course, but just for recognizing that constitutional law is, in practice, much more flexible and unmoored from the text than conservatives pretend.

But this idea that Roe was somehow aberrant has become an article of faith on the right. Another feature of the ruling they point to in support of this claim is that it established a framework for assessing states’ abortion laws based on the trimesters of pregnancy. In the first trimester, no restrictions were allowed at all; in the second, states could regulate based on health considerations; and in the third, states could restrict the procedure as long as abortion was allowed in cases where it is necessary to protect the health and life of the mother. (This framework was later overturned in Planned Parenthood v. Casey, which instituted the standard that regulations on abortion couldn’t impose an “undue burden” on the woman prior to the fetus’s viability.)  The seeming arbitrariness of the “trimesters” framework seemed to bolster claims that Roe was entirely removed from the text of the constitution.

And yet, Segall argued, there’s nothing unique about even these features of the decision. In interpreting constitutional principles, the court sets seemingly arbitrary guidelines all the time — such as when it considers what constitutes a “speedy trial.” In the ruling Grutter v. Bollinger, Justice Sandra Day O’Connor concluded that affirmative action in college admissions could be justified — but only for another 25 years.

“In the criminal procedure area, the court makes up numbers all the time,” said Segall. “Just make it up! The only difference between that and Roe is more people care about it.”

And yet the myths about Roe, that it is somehow uniquely arbitrary and contrived, persist. And they may well play a role in the court’s inevitable decision to re-evaluate the abortion rights in the wake of the latest effort by states to assert control over the decision to end a pregnancy.