The topic of this Symposium is the relationship between law and morality. The essays in this volume adeptly explore the theory of this relationship, track its historical path, and address pressing legal and moral issues of our time. The very basics of law and morality, at least, should be relatively clear. All law worthy of obedience is rooted in morality. A regime whose law is not based in morality, like the regimes of Nazi Germany or Soviet Russia, is not one where the positive law deserves to be obeyed. To our good fortune and to the credit of our forebears, the laws of the United States, for the most part, are rooted in moral presuppositions. Indeed, very few would claim that the American legal regime is fundamentally immoral and ought to be overthrown, and I would not make such a claim myself.
There is, however, one important respect in which our law is deeply immoral: its recognition of a constitutional right of women to have abortions. In the United States, we have not merely decriminalized or legalized abortion. We have made the legality of abortion a matter of individual constitutional right. In so doing, the American legal system has put its highest moral imprimatur on a loathsome procedure that ought to be at least discouraged by the law if not forbidden altogether. Roe v. Wade (1) was thus in my opinion not merely wrongly decided. It was also profoundly immoral.
This Essay lays out a plan for righting that wrong. It describes how pro-life groups can erode the precedential value of Roe, paving the way for its overruling, and legally discourage abortion once again. In the process, this Essay makes two suggestions which should be useful to those who wish to reverse other legal trends they find unfortunate--for example, the extensive constitutional protection our legal system gives to pornography (2) or our unusual use of the death penalty as a form of punishment. (3)
First, those working against Roe must understand that public opinion matters. Just as there are limits on the government's ability to legislate morality (as the experiment of Prohibition taught us) without at least some degree of public support, so too is it the case that the Supreme Court will not overrule incorrect or immoral decisions when the public clearly opposes its doing so. For better or worse, each part of the struggle against abortion--the legislative and the constitutional--requires building up public support.
Second, Americans who oppose abortion must candidly discuss strategy. We must learn to litigate shrewdly and to shape public opinion. On both scores, we would be well-advised to adopt some of the legal tactics employed in past moral constitutional campaigns--for example, the campaigns against capital punishment and racial segregation. To prevail, supporters of the pro-life cause must adapt old means used in these prior campaigns to the new end of cutting back on Roe.
This Essay proceeds in two Parts. Part I discusses how the pro-life position can prevail in the Supreme Court--how Roe can be overruled. Part II suggests several ways to turn the tide of public opinion against abortion, not only insofar as necessary to achieve victory in the Supreme Court, but also so that abortion can once again be legally discouraged, with laws against at least some forms of abortion that are routinely enforced.
I. WINNING IN COURT
Pro-life Americans must work to erode the precedents of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (4) with the same sense of determination and strategic genius that the NAACP Legal Defense Fund used in eroding the precedent of Plessy v. Ferguson. (5) It is worth noting in this regard that the NAACP's campaign against Plessy was a protracted one, beginning in the 1930s, achieving a major victory twenty years later in Brown v. Board of Education, (6) and only realizing complete success with the 1967 decision Loving v. Virginia, (7) more than thirty years after the campaign against Jim Crow had begun. …