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Many opponents of the newly overturned Roe vs. Wade law claim the law was "bad law", as stated on this, National Review, openly conservative website. https://www.nationalreview.com/corner/yes-overturn-roe/.

I understand now that this was not a law in the traditional sense. Is there a counter argument to the "bad law" theory?

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    I don't think this question is answerable because the premise is false. Roe v Wade is a court decision, not a law. Specifically, a court decision that granted additional rights from the 14th amendment, which is the most controversial law in the legal history of the US. And by controversial, I mean that it is the most litigated law in US history.
    – uberhaxed
    Jul 13, 2022 at 17:58
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    "Case law is law that is based on precedents, that is the judicial decisions from previous [court] cases." That is precisely what Roe vs. Wade was. No the problem here is no criteria have been given to define "bad". If you heard this somewhere please cite a source. Bad is a very loaded word. One could argue that it was "bad" because the majority decision wasn't printed with a 12 point font. We need something more specific than, "bad". Jul 13, 2022 at 18:26
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    I don't think the argument is that the 14th is bad, I think the argument is that that was not the original intention of the 14th (the context was to guarantee the rights of newly freed slaves from the 13th amendment).
    – uberhaxed
    Jul 13, 2022 at 18:30
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    It's good or bad law in the sense of law that means not an act of congress but the general body of customs, practices, and court decisions that together with statute law collectively form a legal system. Calling Roe vs Wade good or bad law means you're saying it was a good or bad decision, or contributed positively or negatively to the law as a whole. (It is rather a vague claim, and we'd do better with a more precise "it is bad law because ..." claim.)
    – Stuart F
    Jul 14, 2022 at 9:48
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    If you want to understand or hear arguments as to why something was or was not "good law"... why not ask Law? Jul 14, 2022 at 15:16

4 Answers 4

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When someone says something was "bad law" they don't literally mean that it was "poorly written." Law isn't a stylistic contest. They are not talking about grammatical mistakes, clumsy rhetorical flourishes, and ineloquent expression.

What they mean, instead, is that the disagree with the legal arguments that were used to support that decision. And, while one can indeed disagree with a discretionary choice made by the U.S. Supreme Court in interpreting the U.S. Constitution, the decision was not, contrary to those who argue that it was "bad law", a decision that was particularly egregious or exceptional in departing from precedent or established modes of reasoning in constitutional interpretation.

The newly decided Dobbs case, overturning Roe v. Wade in a stark departure from precedent that completely and non-incrementally overturned a well settled precedent when the court could have addressed the case before it in a far less sweeping way that would modify rather than outright overturn without pre-amble or build up, half a century of settled case law, is far more questionable from a jurisprudential perspective.

Roe v. Wade was based upon the argument that the U.S. Constitution recognizes a right to privacy with respect to personal medical and sex related decisions because protecting a right to privacy is a substantive right which is necessary for the due process rights afforded to people under the 14th Amendment to the U.S. Constitution to be adequately protected, in much the same way that this part of the 14th Amendment protects the rights to free speech and other provisions of the Bill of Rights vis-a-vis state and local governments pursuant to a closely related doctrine known as "incorporation".

The Roe v. Wade court concluded that this right to privacy existed because the motivating force behind many other provisions of the Bill of Rights and the U.S. Constitution that protect individual rights such as the 1st Amendment freedom of religion and freedom of speech, the 3rd Amendment right to not have soldiers quartered in your home, the 4th Amendment right to be free of search and seizure without due process, the 5th Amendment right to decline to confess to crimes even if you are guilty, and so on, all can be seen as different ways of protecting a more general right to privacy and personal autonomy.

The same reasoning about a general substantive right to privacy and personal autonomy has been used by the court to conclude that there is a right to marry the consenting adult of your choice, the right to raise your children as you see fit within reason, and the right for adults to have access to contraception.

Likewise, similar reasoning, drawing upon different provisions of the U.S. Constitution at a more general level, has been used to conclude the that the U.S. Constitution protects the right to travel and prohibits states from enacting laws that unduly interfere with interstate commerce (which is called the "dormant commerce clause").

People who think that Roe v. Wade was wrongly decided disagree with that reasoning. They think that concluding that there is a general right to privacy and sexual autonomy that can be inferred from the more specific express protections of privacy in the Bill of Rights, was too big a logical leap and isn't analogous to a smaller leap from the rights inferred from specific protections in the U.S. Constitution like the right to travel and the invalidity of laws that prohibit you from marrying someone of another race.

They also argue that Roe v. Wade is different because historical practice criminalizing abortion at some point is inconsistent with the notion that the U.S. Constitution has implicitly protected the right to have an abortion all along even if it wasn't described as a constitutional right in so many words prior to Roe v. Wade. They see abortion not as primarily about personal autonomy and privacy, but instead as about the legitimate interest of the state in protecting human life and upholding morality. Therefore, they believe that Roe v. Wade was wrongly decided.

There isn't an objectively right or wrong answer to the question of whether this was rightly or wrongly decided. Judges are not umpires. Every decision about the scope of the rights protected by the U.S. Constitution necessarily involves some big picture discretionary decisions.

Roe v. Wade was a very logical extension of Griswold v. Connecticut which protected the right to obtain contraception based upon the same basic reasoning, and was also a very logical extension of previous decisions such as Loving v. Virginia upholding the right to interracial marriage, and previous decisions upholding parental autonomy in how one raises one's children.

Roe v. Wade is not a decision that was compelled by the language of the U.S. Constitution standing alone, and it could have been decided differently. But, it was also a decision consistent with logical progression from the reasoning of past precedents of the court and a legitimate conclusion that was within the scope of the U.S. Supreme Court's authority to interpret the U.S. Constitution which calls for more flexibility than the interpretation of an easily amended U.S. statute.

The conservatives who oppose Roe v. Wade more generally have a different vision of how the U.S. Constitution should be interpreted that is less protective of the rights to privacy and autonomy, and view state intervention into the private, personal sexual activity and medical decisions of people as legitimate and appropriate.

The liberals who joined the majority in Roe v. Wade and others who subsequently came to support this and other substantive due process cases, in contrast, have a vision of how the U.S. Constitution should be interpreted that sees this document, and especially the Bill of Rights, as part and parcel of a vision of the nation in which there is broad personal autonomy and freedom for individuals that disfavors and prohibits government interference in personal decision-making.

So, when someone says that Roe v. Wade was "bad law" what they are really saying is that the courts decision to protect this and other rights, that were not historically protected by law and are not expressly enumerated in a specific way, was a poor choice of a vision for what the U.S. Constitution's Bill of Rights should protect, given the discretion that the courts have to interpret in multiple ways.

They are emphatic about Roe v. Wade in particular being a bad decision in their view, because they see this decision as authorizing a medical provision which they view as tantamount to murder even in the face of considerations like personal preferences concerning child bearing or one's personal economic prospects which they view as much less weighty (i.e. so called "abortion on demand"). They see abortion as something that is so obviously immoral and wrong that the notion that it can be justified by protections for personal autonomy seem patently absurd to them.

In contrast, supporters of Roe v. Wade see the personal autonomy considerations involved in carrying a pregnancy to term as much more weighty, do not equate abortion to murder, and feel that nearly a half century of Roe v. Wade being an established "super-precedent" which the justices who voted to overturn it had largely affirmed that they agreed with overcame any historical pre-Roe v. Wade historical practice (a history which they, in any case, feel has been mischaracterized by abortion opponents).

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    – CDJB
    Jul 17, 2022 at 7:28
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No. I think you're confusing two meanings of the term "law." Roe v. Wade was not "a law" in the sense of a bill that has been drafted, voted upon, and then signed into law. It was "the law" in that it was a ruling from a group of judges that set a legal precedent. Judges have to obey both forms of law.

Roe v. Wade was a case involving the interpretation of the U.S. Constitution. Like any other document, the Constitution has words and clauses that can mean several things. The majority of the Supreme Court at the time ruled that there was an unenumerated right to abortion inherent in the Constitution. By their nature, however, unenumerated rights are not actually written down, so there's room for disagreement about whether they're actually there.

When critics say Roe v. Wade was "bad law," they are not talking about the way the judicial decision was written, they're talking about its arguments and its conclusion. Roe v. Wade could have been the most eloquently written judicial decision ever penned, but at the end of the day, critics do not agree with the majority's interpretation of the Constitution. So Roe was then "bad law" in the sense that it was caselaw that all judges in the U.S. had to obey, but critics believed it was the wrong conclusion.

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    I think you're looking for the word implicit, not inherent. It's worth stating that the amendment in question is the "birthright" amendment, which does not explicitly mention anything even close to abortion. And the original context of the law was to guarantee the rights of newly freed slaves from the 13th amendment since the legal stance at the time was that they were not citizens and didn't even have to right to sue in court. You can probably guess that it does take quite the mental leap to imply abortion rights from the original intent of the law.
    – uberhaxed
    Jul 13, 2022 at 18:27
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    @uberhaxed I think you're looking for the word "infer," not "imply."
    – phoog
    Jul 14, 2022 at 4:07
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    @uberhaxed The 14th Amendment covers far more than just birthright citizenship. That's just the first sentence of the first section. The Amendment as a whole is one of the Reconstruction Amendments, a result of the Civil War and the resultant attempts to rebuild the United States, which had significant impact on Federal-State relations. Why does it need to explicitly mention abortion for the guidelines laid down by that amendment to apply, anyway? Even before that amendment it was explicitly stated that not being enumerated in the Constitution does not make something not a right.
    – JAB
    Jul 14, 2022 at 14:34
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    @WernerCD states' rights or people's rights. A right need not be explicit in the bill of rights to exist, as the 10th amendment acknowledges. And as nobody seems to recognize, the US legal system is based on the English system, in which judges decided what the law was by interpreting not only statutory provisions but also judicial precedent and abstract principles of justice. Where is the right to travel? Where is the right to form contracts? Where are the rights of citizenship? Are these also summoned "out of thin air"?
    – phoog
    Jul 15, 2022 at 5:02
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    @uberhaxed the 14th amendment establishes (in part) who enjoys the rights of citizenship, but the existence and nature of the rights themselves are assumed by the 14th amendment, not enumerated by it. Where is the right to leave and enter US territory? Where is the right to vote? Where is the right to serve on a jury or to hold political office? What was the legal ideology of the judge who introduced the concept of "consideration" into English contract law or the judges who developed the common law of assault or indeed the principle of stare decisis?
    – phoog
    Jul 15, 2022 at 5:48
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The idea behind the phrase "bad law", which was a common argument at the time, is that the judges made up the whole trimester system and the rules for viability. That feels like a law, which is congress's job. A normal judicial decision makes up some new rules, but Roe seemed to go way beyond. Wikipedia isn't a great source in general, but the Roe article sums it up nicely:

Roe was criticized by [...] some [...] who thought that Roe reached the correct result but went about it the wrong way, and some called the decision a form of judicial activism.

If someone was against abortion, it seemed as if the court could have just ruled in her favor, written something vague about privacy, and let congress write the actual law. Of course, the court's job is to give clear guidance for lesser courts in these messy cases. They almost had to make up new rules for exactly when abortion was legal.

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    In evaluating a case where statutes offer insufficient guidance to unambiguously specify which party should prevail, it is right and proper for a judge to write rules that should be applied unless or until Congress says it wants the ambiguities resolved in some other fashion, but rules drafted by a judge should be viewed as a interim rules to be applied until Congress does its job and formulates something better. In situations where both Constitutional and statutory issues arise, a judge may offer guidance to Congress about what things it would or would not have authority to do, ...
    – supercat
    Jul 17, 2022 at 17:22
  • ...but it would have been far more proper for the Court to e.g. specify that there are different stages of gestation which, *in the absence of statutory rules about where the boundaries lie, the court will treat as subdividing a pregnancy term into thirds, than for the Court to imply that Constitution mandates subdivisions are at the 1/3 and 2/3 marks.
    – supercat
    Jul 17, 2022 at 17:25
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    Most people disagree both with the notion that every product of fertilization must be legally regarded as a human being, and with the notion that someone should be able to deliberately kill without consequence a full-term fetus which a competent obstetrician would be likely able to deliver (alive) without delay. For the Court to recognize the need for a legal distinction between a five-minute-old embryo and a 40-week fetus is right and proper, and there's nothing wrong with it suggesting arbitrary lines where courts should draw the boundary in the absence of statutory guidance, but...
    – supercat
    Jul 17, 2022 at 17:32
  • ...the Court's arbitrarily-drawn lines should not have been viewed as sacred for decades.
    – supercat
    Jul 17, 2022 at 17:32
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This comes down to the two main approaches to interpreting the US constitution:

  • The conservative position (Originalism) treats law as a kind of programming language, to be interpreted as a compiler would, with the Constitution being the equivalent of an OS Kernel. If you want to patch the Kernel, there's a mechanism for that - a Constitutional Amendment, 27 of which have been applied.
  • The liberal position (Living Constitution) is that the Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended, so it doesn't become outdated, as long as the spirit is retained.

The Constitution mandates "Due Process"(https://www.law.cornell.edu/wex/due_process). Originalists maintain that since the constitution is "unpatched" in regard to the definition of Due Process, it means what it meant when it was written, i.e. the government can't arbitrarily take away your liberty or property, it needs to go through the correct legal process. Living Constitutionalists consider that it covers other implicit rights, like privacy, this is concept is called Substantive Due Process (https://www.law.cornell.edu/wex/substantive_due_process)

Roe was decided upon the Substantive Due Process right to privacy, which, if you consider the whole concept to be flawed, makes it incorrect and therefore "bad", QED.

There is of course, room for a lot of grey in between. E.g. the late Justice Ruth Bader Ginsburg, despite being a feminist icon and supporting the Substantive Due Process concept, thought that Roe was decided incorrectly:

She thought so, because the right to privacy is that of the physician performing the abortion, not the woman, which is dubious, because the government can otherwise heavily regulate what physicians do. She thought that Roe should have been decided based on the Equal Protection clause of the Constitution, since that is way less open to interpretation and would also protect the right of women to not have an abortion (she was a lawyer on the case of "Struck v. Secretary of Defense", where a servicewoman was fired for refusing to abort). She argued that to the court at the time of Roe, but could not persuade enough of them.

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