Forty-five years since Roe was handed down. The main evil of Roe of course is the 60 million innocents slaughtered as a result of it. A secondary evil is the corruption of our judicial system. In Roe we have a decision which is devoid of any pretense that it is interpreting the law. Professor John Hart Ely of Yale, in his famous 1973 law review article The Wages of Crying Wolf: A Comment on Roe v. Wade, put it succinctly: “It is nevertheless a very bad decision. Not because it will perceptibly weaken the court-it won’t; and not because it conflicts with my idea of progress or what the evidence suggests is society’s-it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Go here to read Ely’s article, its conclusion made doubly damning by the fact that he personally favored legalization of abortion and thus was condemning a decision the result of which he personally favored.
Roe, and decisions like it, are, in the words of Byron White’s dissent in Roe, a “raw exercise in judicial power“. Illegitimate judicial power I would add, for when a court stops interpreting law and begins making law, and that is clearly what occurred in Roe, a court betrays the basic function of a court. It is precisely as illegitimate as Congress sitting as a court of general jurisdiction and beginning to find various people guilty of offenses, or if the President were to declare the Supreme Court an arm of the Executive Branch and replace all the Justices with his nominees. That the Supreme Court has thus far gotten away with its illegitimate power grabs makes such decisions as Roe not a whit more legitimate.