Justice Alito posits, in Dobbs, that Roe v. Wade was less a constitutional decision than a poor imitation of “a statute enacted by a legislature,” and a mockery of substantive due process. It is received wisdom among many centrist and liberal Court observers, too, that Roe was a weak decision—a political position in search of a constitutional justification. The first time I heard this sentiment expressed was by a professor in a constitutional-law class I took as an undergraduate, a quarter century ago; I shared and even parroted this view for years as consensus, as fact. But Roe was pretty awesome at what it intended to do, which was to insure, for the first time, a woman’s self-evident right to possession of her own body. The success of the sustained right-wing backlash against Roe is less an indictment of the decision itself than of the flaccid, hand-wringing, extremely Democratic Party response to the backlash by some of the liberals who might have been expected to be Roe’s staunchest defenders. The skeptics included Ruth Bader Ginsburg, who somehow believed that a Roe-like abortion decision would have been less likely to be strafed by the Moral Majority had it been based on equal protection rather than substantive due process.
An illustration of the strength of Roe’s framework can be found in the 1983 Supreme Court case City of Akron v. Akron Center for Reproductive Health, which concerned an anti-abortion city ordinance. The Court found every single one of the rules at issue—including parental notification and consent; a twenty-four-hour waiting period; a requirement that second-trimester abortions be performed in hospitals; and a script in which a patient was told, among other things, that life begins at conception—to be unconstitutional. The Court correctly identified the restrictions as efforts to stall or change a woman’s decision to end her pregnancy—in other words, as efforts to protect fetal life, which Roe did not condone before viability. One of the dissenters in Akron was a relatively new Justice, and the first woman ever named to the Court, the Reagan appointee Sandra Day O’Connor. According to Evan Thomas’s biography of O’Connor, she wrote in her personal notes at the time that the “interest of the state in protecting the unborn is essentially the same at all stages of pregnancy,” which meant, in her view, that regulations were permissible throughout. She disagreed with viability as a useful borderline for deciding abortion law, believing that medical advances would likely keep pushing it earlier and earlier. (Roe v. Wade, in 1973, placed its earliest estimate of viability at twenty-four weeks, which still roughly holds.)