Yale Bulletin and Calendar

January 17, 2003|Volume 31, Number 15|Two-Week Issue

Law School events focus on
controversial Roe v. Wade opinion

The Law School has organized a day-long series of events on Friday, Jan. 31, to commemorate the 30th anniversary of the Supreme Court decision in Roe v. Wade, which legalized abortion in all 50 states.

The 30-year-old decision continues to stir controversy today. The case is frequently in the news and the topic of much political debate. The New York Times and other papers recently reported on efforts within Congress to pass laws restricting abortion, and eventually aimed at overturning Roe.

According to Jack Balkin, the Knight Professor of Constitutional Law and the First Amendment at the Law School, "Roe is an opinion that people have been continually attempting to rewrite almost since the time it was handed down."

The Yale program -- "Roe v. Wade: Reflections after 30 Years" -- will include two panels: one featuring a sort of mock Supreme Court aimed at rewriting the decision and another examining the practical repercussions of Roe in the current political climate. The panels will be held in Rm. 127 of the Law School, 127 Wall St., and are free and open to the public.

Rewriting Roe

In the afternoon panel, "Roe v. Wade: Thirty Years Later," Balkin and eight other prominent legal scholars will literally rewrite Roe, by presenting their own opinions on the case, written without reference to any materials or events after Jan. 22, 1973, when the Roe decision was originally handed down. The session will begin at 1:30 p.m. and will run until 5:30 p.m., with time for open discussion.

Although the panelists on the mock Supreme Court will not make reference to current events, Balkin says that the exercise is still informed by an awareness of the consequences of Roe. "Thirty years later it becomes clear exactly where the controversies are likely to lie," he points out. "In 1973, it was not clear what abortion politics would be organized around. It was not clear what the key issues would be." For instance, he notes, no justice in 1973 could have foreseen the debates over partial birth abortion and parental notification laws that have become prominent lately; so, the rewritten opinions will say a lot about the present.

A part of the exercise, however, grapples with the nearly timeless principles of the Constitution, Balkin notes. "You ask: Are the materials of constitutional law adequate to produce Roe v. Wade or any opinion that would deal with the abortion question?"

The Roe decision found that state laws criminalizing abortion were unconstitutional because they intruded on a woman's legitimate right to privacy in deciding whether or not to have a child. Justice Harry A. Blackmun wrote in his majority opinion published by the court: "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation." The court devised a trimester system, with the mother's right to privacy dominant in the first third of her pregnancy, and the state's interest in protecting the mother and the potential life of the fetus becoming more important in the second and third trimesters.

Every aspect of the decision will be reconsidered by Balkin's mock court. However, says Balkin, unlike the real Supreme Court, "We do not expect everyone to join one opinion -- everyone is supposed to do their own thing."

The disagreement over Roe has persisted over the last 30 years, notes the Yale scholar, and the decision has been attacked and defended in lawsuits, as well as state and federal legislation, and has become a key point of division in American politics. "The structure of American political debate was organized around belief in or objection to Roe v. Wade," says Balkin. For example, "Robert Bork would be sitting on the Supreme Court if it weren't for Roe v. Wade, and all of the Supreme Court nominations that occurred after Bork were made in the shadow of the dispute over Roe v. Wade."

This is not the first time Balkin has attempted to "rewrite" history. Two years ago, he gathered colleagues to offer their legal opinions on the Brown v. Board of Education decision, which will have its 50th anniversary in 2004. "What Brown v. Board of Education Should Have Said," published by NYU Press in 2001, served as the model for the Roe exercise; the opinions submitted for the Jan. 31 event will be included in a volume called "What I Should Have Said," also to be published by NYU Press.

Balkin points to a key difference between Roe and Brown, which helps explain why the former is still such a prominent issue -- nearly everyone in the United States believes that Brown was correctly decided. Balkin mentions the recent resignation of Trent Lott as majority leader of the Senate as evidence that the principle of desegregation behind Brown is widely accepted. "Nobody has resigned from the Senate because they are pro-life," Balkin says. "Roe is still very much controversial."

The Yale scholar foresees the case influencing American law and society for a long time to come. "If we were to do this exercise 20 years from now, on the 50th anniversary, we would find that the key issues would be still different," he says. "Twenty years from now there will be cloning, and there will be all sorts of gene therapies, and there will be all sorts of designer babies, and the Roe v. Wade decision and its implications for the right to choose will clearly have an effect of the constitutionality of prohibitions and regulations on all of those practices."

The scholars on Balkin's panel were selected because they are prominent in the debate over Roe -- both in favor of the decision and against it. They also each bring unique ideas about the Constitution to the discussion, and, Balkin says "it's interesting to see how they apply their theories of constitutional interpretation in the context of Roe."

The panelists, in addition to Balkin, will be Yale law professors Akhil Reed Amar, Jed Rubenfeld and Reva Siegel; Anita Allen-Castellitto of the University of Pennsylvania; Michael Stokes Paulsen of the University of Minnesota; Jeffrey Rosen of George Washington University, who is also legal affairs editor for The New Republic; and Mark V. Tushnet and Robin L. West of Georgetown University.

Repercussions of Roe

A panel beginning at 10:30 a.m., organized by Yale Law Women, will look at some of the practical repercussions of the Roe decision in the current political climate. It will also be in Rm. 127 at the Law School.

Titled "Practitioners' Perspectives: Thirty Years Later, Where Are We Now?"-- the panel will complement Balkin's academic exercise by assessing where reproductive rights stand today and discussing how to overcome challenges to these rights. The speakers on this panel are all Yale Law School graduates who have litigated reproductive rights cases and advocated for abortion rights on the national, state and local levels. Priscilla Smith LAW '91 is the director of the domestic program of the Center for Reproductive Law and Policy; Betsy Cavendish LAW '88 is the legal director and general counsel of the National Abortion and Reproductive Rights Action League; and Catherine Weiss LAW '87 is the director of the American Civil Liberties Union's Reproductive Freedom Project.

In all of the panels, there will be open discussion of this controversial case. Says Balkin, "I have a feeling that people will have strong views, and they will disagree with each other, and that will be to the good. I'm really looking forward to it."

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