30 years later, scholars ‘retry’ Roe v. Wade



Thirty years after the landmark Roe v. Wade ruling made abortion legal in the United States, Yale Law School professors hosted speakers and programs to examine the uncertain future of abortion rights.

With the prospect of a more conservative Supreme Court in the coming years, the Law School events focused on the future of abortion rights and the basis of the current law. Friday morning, abortion rights advocates explained their fears that Roe v. Wade will soon be struck down. In the afternoon, Law School professor Jack Balkin hosted a mock retrial of the case, which struck down a Texas statute that had made it a crime to perform abortions except when a woman’s life was in danger.

Organized by Yale Law Women, participants in the morning panel discussed the status of reproductive rights in the United States and the current debates on abortion in American politics. Betsy Cavendish, legal director and general counsel at the National Abortion and Reproductive Rights Action League, defended Roe and outlined the struggle faced by abortion rights advocates.

“How do we convince people that the rights of women could be taken away again?” Cavendish said. “The core pillars of Roe are in danger.”

In the afternoon, Balkin led a retrial of both Roe v. Wade and Doe v. Bolton, a case similar to Roe that was tried in Georgia soon after the Roe decision. Balkin and eight other prominent legal scholars presented opinions on the cases to an audience of professors, students, and activists.

Balkin, who brought together colleagues in a similar setting two years ago to retry the Brown v. Board of Education case, said the opinions of the professors who acted as “justices” and spoke during Friday’s mock Supreme Court will be published in a book set to be released late in 2003 or early 2004.

Based on the opinions presented Friday, Balkin said he expects seven of the justices will vote to strike down the Texas law banning abortions in their published pieces. These scholars include Balkin, who presided as chief justice, and Yale Law School professors Akhil Amar, Jed Rubenfeld and Reva Siegel. He said the same professors, excluding Amar, would strike down the Georgia statute as well.

In their opinions, the professors attacked or defended the Texas and Georgia laws mostly with legal evidence, but some based their opinions on private, moral considerations as well.

Rubenfeld, speaking against the Texas and Georgia laws, said the state should not force a woman to have a child against her will. He said the state does have the right to impose a course of action on a person under the Ninth Amendment of the Constitution.

“The state cannot say you will be a bus driver or you will be a plumber. How can the state say you will be a mother?” Rubenfeld asked the audience.

Rubenfeld also raised an issue many scholars tried to address in their remarks — the notion of how to classify a human fetus and the consequences this has on the abortion debate.

“Are fetuses really human lives? Is an acorn really an oak tree?” Rubenfeld asked.

University of Minnesota law professor Michael Stokes Paulsen gave an impassioned opinion on upholding laws that forbid abortion. He said no reading of the Constitution leads to an abortion rule or a principle allowing some human beings to kill other human beings. He said courts were wrong for declaring a certain status of people as un-human.

Balkin said in an e-mail he thought the mock Supreme Court had been a thought-provoking exercise.

“The debate was at a very high level of thoughtfulness and engagement, and the quality and seriousness of the questions posed by the audience were particularly fine,” Balkin said.

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