the status of Roe v. Wade

I ran across an op-ed piece in today's San Francisco Chronicle that takes what is apparently an increasingly common position among law professors who are in favor of abortion rights. The essay by Mary Dudziak argues that the current concern about the fate of Roe v. Wade with new membership on the Supreme Court is misplaced because "the heart and soul of Roe was actually overruled in 1992." According to this view, the Court in Casey "retained Roe in name only. It pulled out the substance, and inserted a substitute. It was not the core of Roe that was preserved, but instead just a shell." This is very similar to the view expressed by Chris Whitman in the centennial issue of the Michigan Law Review. See 100 Mich. L. Rev. 1980 (2002). There, Whitman argued that "only a sliver" of the right to abortion remains after Casey. I recently published a comment on Whitman's article in a University Faculty for Life volume edited by Father Joe Koterski SJ. My comment explores this argument in more detail than I can provide here. But I think the rhetorical startegy of Dudziak and Whitman needs to be countered. Any serious discussion of the constitutional issues raised by pro-life legislation needs to begin by accurately describing the current state of affairs, and a discussion that contends that the right to abortion has only a "minimal existence" under current law doesn't meet even the lowest possible standard of accuracy. We ought to be able to expect better from distinguished academics.

Richard